Research › Search › Judgment

Punjab High Court · body

2006 DIGILAW 1463 (PNJ)

Balwinder Kumar v. State Of Punjab

2006-04-04

AJAI LAMBA, MEHTAB S.GILL

body2006
Judgment Ajai Lamba, J. 1. The appellants have filed the present appeal which is directed against the judgment of conviction and order of sentence dated 28th of October, 2002 whereby all the three appellants have been convicted under Section 302 read with Section 34 IPC and have been sentenced to undergo life imprisonment and to pay fine of Rs. 500/- each, and in default of payment of fine, to further undergo RI for six months. Raj Kumar who was also an accused, died pending trial on 10.6.2002 and proceedings against him were ordered to be dropped. 2. The facts as unravelled through statement of Sweety wife of Balwinder Kumar a Bittu in ruqa Ex.PS dated 2nd of October, 1998 sent through Constable Charanjit Singh from Rajindra Hospital, Patiala at 6.00 a.m. on 2nd of October, 1998 to Police Station, Sirhind for registration of FIR are as under. 3. Sweety in her statement has stated that she was married with Balwinder Kumar son of Raj Kumar in the year 1994 and gave birth to two sons namely Mohit 3 years and Rohit aged 1 year and 9 months. Balwinder Kumar, appellant used to work as a Photographer and was addicted to liquor. Appellant, Shakuntla the mother-in-law used to live in the same house. The in-laws used to harass complainant, Sweety, for demand of dowry despite the fact that the father of Sweety had given sufficient dowry in accordance with his capacity. Complainant, Sweety brought money from her parents house. However, it was wasted by husband, Balwinder Kumar, appellant in liquor. Whenever Balwinder Kumar, appellant was restrained from consuming liquor, the complainant was given beatings. The complainant has further stated that Shakuntla, mother-in-law and Raj Kumar, father-in-law also used to abuse her. On 1st of October, 1998 at about 7.00 p.m. while Raj Kumar (since deceased), Shakuntla Devi (mother-in-law) and Kiran (sister-in-law) were present in the house, Belwinder Kumar husband of the complainant under the influence of liquor started abusing the complainant and was instigating the complainant to be finished. On this, Shakuntla Devi, appellant caught hold of the complainant from the arms, Balwinder Kumar felled the complainant down by holding her from hair and Raj Kumar, father-in-law (since deceased) brought a tin of kerosene oil and a match box from the kitchen whereupon Kiran, sister-in-law poured kerosene oil on the head and stuffed a chunni into the mouth of the complainant. While Balwinder Kumar was trying to put fire, Narinder Kumar son of Des Raj resident of Khanna reached there and raised an alarm bachao bachao. Despite the objection of Narinder Kumar Balwinder Kumar set the complainant on fire. Many people gathered who extinguished the fire by putting water and the complainant was brought to the hospital by Narinder Kumar etc. This statement was converted into formal FIR bearing No. 159, Ex. PS/3 which was registered at 8.20 a.m. on 2nd of October, 1998 under Sections 307, 498-A and 34 IPC, and the report was received by the Judicial Magistrate, Ist Class on 2nd of October, 1998 at 1.35 p.m. 4. Complainant, Sweety breathed her last in the hospital on 2nd of October, 1998 itself at 12 noon. 5. Charges were framed against the appellants and Raj Kumar (deceased) under Section 302 read with Section 34 IPC, in the alternative under Section 304-B read with Section 34 IPC on 12th of January, 1999. The accused pleading not guilty claimed trial. 6. The prosecution so as to prove its case had led medico legal evidence through the statement of Dr. Avtar Singh (PW-4), who on 15th of October, 1998 was posted as Medical Officer, Civil Hospital, Fatehgarh Sahib. On an application of the police, Ex.PF seeking his opinion, the witness (Dr. Avtar Singh, PW-4) did not give any opinion as the patient had been referred to Rajindra Hospital, Patiala. 7. The other medico legal evidence has come by way of statement of Dr. Harish Tuli (PW-3), Professor, Forensic Medicine, Medical College, Patiala, who conducted post-mortem examination on the dead body of Sweety, aged 25 years at about 4.45 p.m. on 2nd of October, 1998. The witness found 98% burns over the body of the deceased. 8. Dr. Gulshan Rai has been examined as PW-1 who medico legally examined Balwinder Kumar son of Raj Kumar on 5th of October, 1998 and found simple injuries on the person of Balwinder Kumar. 9. The other evidence is contained in the statement of PW-10, Narinder Kumar who has given an eye-witness account of the factum of appellants burning the deceased Sweety. Rattan Chand appeared as PW-8 however was declared hostile. 10. The other evidence is contained in the statement of Amrit Lal, PW-2 who is a Draftsman and prepared the scaled site plan, Ex. PB on 6th of October, 1998. Rattan Chand appeared as PW-8 however was declared hostile. 10. The other evidence is contained in the statement of Amrit Lal, PW-2 who is a Draftsman and prepared the scaled site plan, Ex. PB on 6th of October, 1998. Zora Singh, Sub-Divisional Magistrate, Nabha has appeared in the witness box as PW-5, who was posted as Sub Divisional Magistrate at Fatehgarh Sahib on 2nd of October, 1998. Zora Singh, PW-5, on police request went to the hospital, however by then, Sweety had died. Mohit son of Balwinder Kumar, aged 3 years was produced at about 1.30 p.m. and his statement was recorded which is Ex.PG by PW-5, Zora Singh. 11. Mohit son of Balwinder Kumar, aged 3 years was produced as PW-6. However, Mohit being a child, on examination, of the Court, was found not competent to depose as a witness on account of his age. Ravinder Singh of CIA staff has appeared as PW-7 who has brought on record his affidavit Ex.PH relating to the special report. 12. Satwinder Singh has appeared as PW-9. Satwinder Singh is the brother of Sweety, the complainant (deceased) and had identified the dead body. Varinderjit Singh has appeared as PW-11 who was posted as SHO, Police Station, Fatehgarh Sahib and effected arrest of Kiran appellant, on 10th October, 1998. Ganga Sharan Sharma appeared as PW-12 who performed the marriage of Sweety with Balwinder Kumar according to Hindu rites on 12th August, 1998. 13. Charanjit Singh has appeared in the witness-box as PW13, being father of the deceased. The witness has testified to the effect that he was a witness to the statement made by Sweety which was recorded by ASI, Himmat Singh on 2nd of October, 1998 and was duly thumb-marked by Sweety. Himmat Singh, ASI has appeared as PW14 being the Investigating Officer. Rajesh Kumar has appeared as PW-15 who on receiving the chit from the Civil Hospital, Fatehgarh Sahib, deputed ASI, Himmat Singh to go to the hospital to record the statement of the patient and to take further action in the matter. Investigation was conducted by this witness i.e. Rajesh Kumar, PW15, SHO, Police Station, Fatehgarh Sahib with effect from 2nd of October, 1998 and effected the arrest of Shakuntla, Raj Kumar and Balwinder Kumar. Head Constable, Gurmail Singh, PW-16 is a formal witness. 14. All the facts were put to the accused. Investigation was conducted by this witness i.e. Rajesh Kumar, PW15, SHO, Police Station, Fatehgarh Sahib with effect from 2nd of October, 1998 and effected the arrest of Shakuntla, Raj Kumar and Balwinder Kumar. Head Constable, Gurmail Singh, PW-16 is a formal witness. 14. All the facts were put to the accused. Accused, in the statements under Section 313 Cr.P.C., claimed to be innocent and false implication. Balwinder Kumar has stated that Sweety caught fire and in the process of saving her, he (Balwinder Kumar) also received burn injuries. Shakuntla Devi claimed that she was residing separately alongwith Raj Kumar. Likewise Kiran has stated that she had been married at Chandigarh for the last 15 years and was residing with her husband having two children and she was not present at the time of commission of the crime. 15. The defence led evidence by producing Karam Chand as DW1, Gujjar Mal, DW-2 and Vikram Masih as DW-3. 16. Shri Baldev Singh, Senior Advocate assisted by Shri Jasbir Rattan, Advocate, appearing for the appellants has argued that Ex.PS is a fabricated document and has been introduced so as to give the entire case the colour of a dying declaration version. In support of the argument, Shri Baldev Singh has stated that Dr. Harish Tuli, PW-3 who conducted the post-mortem examination on the body of Sweety found 98% burns on her body. The incident took place at 7.00 p.m. on 1st of October, 1998 whereas the alleged statement Ex.PS was recorded at 6.00 a.m. on 2nd of October, 1998 and the FIR is at 8.20 a.m. on 2nd of October, 1998, the special report having sent at 1.35 p.m. the same day. In support of the same argument, it has been contended that there is no endorsement of any doctor in the entire record showing Sweety to be in a good mental state capable of giving a statement much less a detailed narration of events as contained in Ex.PS. 17. The most material documents in this regard were the admission and treatment record of Sweety at Fatehgarh Sahib and her medico legal report as also the bed head ticket and the record of treatment of `Sweety till her death at 12 noon on 2nd of October, 1998 in Rajindra Hospital, Patiala. 17. The most material documents in this regard were the admission and treatment record of Sweety at Fatehgarh Sahib and her medico legal report as also the bed head ticket and the record of treatment of `Sweety till her death at 12 noon on 2nd of October, 1998 in Rajindra Hospital, Patiala. It has been argued that it was the duty of the prosecution to bring on record the entire record so as to establish that the dying declaration was given while Sweety was in a good and healthy mental state. Ex.PS has also been attacked on the ground that it is a detailed statement and could not have come out of a person who had suffered 98% burns 11 hours prior recording of the statement. 18. It has further been submitted that when Shri Himmat Singh, ASI, Investigating Officer came to know at 10.30 a.m. on Ist October, 1998 at Fatehgarh Sahib that Sweety had been taken to Patiala, why did he not go to Patiala immediately and contacted the Magistrate so as to get the dying declaration in accordance with accepted principles and the High Court Rules and Orders which require endorsement of a doctor with regard to mental condition of the person making the statement. It has further been argued that sedation would have been given to Sweety and therefore, it was impossible for Sweety to be in a mental state to give a statement as contained in Ex.PS. As a clincher to the argument, it has been added that PW-14, Himmat Singh, ASI has tried to introduce Ex.PR which is a request to the doctor seeking his opinion with regard to the condition of the injured and Ex.PR/1 the endorsement of the doctor that the patient is fit to give statement recorded by one Dr. Kanwaldip Singh at 5.13 a.m. on 2nd of October, 1998. As per the learned Counsel appearing for the appellant, that said endorsement of Dr. Kanwaldip Singh cannot be taken into account because Dr. Kanwaldip Singh has not been produced by the prosecution in Court to prove this document. Even otherwise, PW-14, ASI Himmat Singh was to prove this document. Even otherwise, PW 14, ASI Himmat Singh when confronted with these facts, stated that "I did not know the doctor who gave the opinion personally regarding the fitness of the deceased. Kanwaldip Singh has not been produced by the prosecution in Court to prove this document. Even otherwise, PW-14, ASI Himmat Singh was to prove this document. Even otherwise, PW 14, ASI Himmat Singh when confronted with these facts, stated that "I did not know the doctor who gave the opinion personally regarding the fitness of the deceased. I did see that doctor writing and signing earlier." Thus, the endorsement, Ex.PR attributed to Dr. Kanwaldip Singh is not proved on the record and the said endorsement has to be ignored. 19. It has further been contended that the name of Narinder Kumar could not have been known to Sweety and the very fact that the name of Narinder Kumar finds mention in her statement reflects the fabrication of the document. So much so that even parentage of Narinder Kumar and residence are contained in the statement of Sweety. As against this, Narinder Kumar appeared in the witness-box as PW-10 and had admitted that Charanjit, father of Sweety was not known to him earlier and it was later on that he came to know that Sweety was the cousin of Anil Kumar @ Gattu who was known to this witness i.e. Narinder Kumar, PW-10. Even in the examination-in-chief, Narinder Kumar has referred to her as "lady who is deceased in this case, however I do not know her name". Considering the totality of the contents of the statement, it transpires that Narinder Kumar, PW-10 came to know of the name of Sweety subsequently. It is in this context it has been argued that when Narinder Kumar, PW-10 did not know Sweety, how could Sweety give his name, parentage and residence in a state of health having received 98% burns 11 hours earlier. 20. The other argument raised on behalf of the appellants is that Rattan Chand, PW-8 had to be declared hostile and he has disowned his earlier statement to the police when his own version does not find support from any other piece of evidence and therefore, the testimony of PW-8, Rattan Chand is liable to be ignored. Qua Narinder Kumar, PW-10, the learned Counsel appearing for the appellants has stated that he was an introduced witness. The sequence of facts themselves show the fabrication of evidence by the prosecution. Qua Narinder Kumar, PW-10, the learned Counsel appearing for the appellants has stated that he was an introduced witness. The sequence of facts themselves show the fabrication of evidence by the prosecution. Narinder Kumar admittedly was a resident of Khanna and was running a lottery stall from 9.00 a.m. to 4.00 P.M. On the date of incident, Narinder Kumar allegedly left for Sirhind after closing his business at about 4.00 p.m. and reached Sirhind at 6.30 p.m. He had no transport and thereafter, he reached the house of his wifes sisters husband which is located at a distance of 10/15 houses from the house of the accused. He has further admitted that the house of the accused is not in the same street but after a turn. He admitted that the house of the accused was not visible from the house of his relative where Narinder Kumar was visiting in Sirhind. It is contended that with this topography of the area and the circumstances showing his presence on the date of incident without there being any reason for his visit at Sirhind, he is a introduced eye-witness. 21. Narinder Kumar, PW-10, in the contention of the learned Counsel for the appellant, could not have seen or heard the cries of Sweety because he was staying in a house 15/17 houses away. The witnesses who have appeared, contentedly, were interested and not a single neighbour has been produced to testify although the prosecution case is that the neighbours were present at the place of incident. 22. The learned Counsel has relied upon a judgment of the Honble Supreme Court in the case of Muneer Khan v. State of M.P., 2002(2) Recent Criminal Reports (Criminal) 458, to say that in such cases, it is difficult to believe that all these people would have combined together to perform the actual act attributed to them for murdering the deceased. 23. The learned State Counsel when confronted with the arguments, tried to establish that the dying declaration recorded by ASI Himmat Singh, PW-14 was supported by ocular version given by Narinder Kumar PW-10 and Rattan Chand, PW-8. It has further been stated that the presence of Himmat Singh, PW-14 stately was established because he was deputed to investigate the case and on coming to Know that the deceased had reached Rajindra Hospital, Patiala. It has further been stated that the presence of Himmat Singh, PW-14 stately was established because he was deputed to investigate the case and on coming to Know that the deceased had reached Rajindra Hospital, Patiala. He (ASI Himmat Singh, PW-14) reached Rajindra Hospital, Patiala at 5.13 a.m. on 2nd of October, 1998 where upon opinion of the doctor was sought vide application, Ex.PR on which endorsement, Ex.PR/1 has been given at 5.13 a.m. reflecting that Sweety was fit to give the statement. 24. Counsel for the State has further pointed out from the statement of Dr. Harish Tuli, PW-3 that even a patient having 98% injuries could make a statement until he is not in a serious shock with regard to the veracity of evidence which has come on the record by way of Ex.PR and Ex.PR/1. The learned State Counsel has tried to convince the Court saying that the doctor making endorsement Ex.PR/1 was not known to ASI Himmat Singh, PW-14 because Himmat Singh belonged to Fatehgarh Sahib whereas Sweety was admitted in Rajindra Hospital, Patiala. The State Counsel however could give no explanation with regard to the absence of no medical record of Sweety from the hospital at Fatehgarh Sahib or the treatment chart bed head ticket of Sweety in Rajindra Hospital, Patiala. Further, no explanation or document has been pointed out by the learned Counsel for the State reflecting that Sweety was in proper mental state while she narrated the incident contained in her statement, Ex.PS. 25. He has further stated that Rattan Chand, PW-8 who was declared hostile, was a natural witness belonging to the mohalla itself and the presence of Narinder Kumar stands established through the statement of Rattan Chand, PW-8. It has further been contended that the presence of Narinder Kumar was natural in so much as Narinder Kumar was visiting his relatives who were residing in the same mohalla. 26. We have gone through the entire record and we find that it stands established that admittedly the incident took place in the house of Balwinder Kumar. It has further come on the record Kiran, sister-in-law, had been married and was living at Chandigarh for the last 15 years. Likewise, reference to the statement of ASI Himmat Singh, PW14 shows that Balwinder Kumar and Raj Kumar, accused had another house in the same street. It has further come on the record Kiran, sister-in-law, had been married and was living at Chandigarh for the last 15 years. Likewise, reference to the statement of ASI Himmat Singh, PW14 shows that Balwinder Kumar and Raj Kumar, accused had another house in the same street. Rajesh Kumar, who was the SHO in Police Station, Fatehgarh Sahib on the date of incident appeared as PW-15, has admitted in his cross-examination to the effect that "houses of the accused Balwinder Kumar and Raj Kumar at a distance of 10-15 yards." He has further, stated that he came to know that accused Balwinder Kumar was living separate from his parents (Raj Kumar and Shakuntla) since about one year before the date of occurrence. It, therefore, transpires that as per the statement contained in Ex.PS, Shakuntla and Raj Kumar were living with Balwinder Kumar, whereas on investigation, the Investigating Officer found that the two had separate residences. This is a clear contradiction in prosecution case. Whether the accused had a common residence or not is an important aspect to be considered particularly, in cases of such nature so as to verify whether the relatives of the husband lived in the same house having common Kitchen or whether they had separate residence and therefore would ordinarily not be interested in dowry to be received by the husband. 27. So far as the medico legal aspect of the case is concerned, there is no iota of evidence on the record to show that Sweety was in a healthy mental state to give her statement with regard to the incident. Ex.PS, the statement attributed to deceased Sweety contains such details in seriatim that it is difficult for us to comprehend that it was given by a person having suffered 98% burns 11 hours before the statement was given. The justification given to Ex.PR/1, the alleged endorsement of Dr. Kanwaldip Singh regarding mental health of Sweety, cannot be taken into account for the reason that the Investigating Officer, ASI Himmat Singh, PW-14 himself has admitted that he had not seen the doctor signing earlier and did not know the doctor. In any case, the document Ex.PS has also not been signed by the doctor. Kanwaldip Singh regarding mental health of Sweety, cannot be taken into account for the reason that the Investigating Officer, ASI Himmat Singh, PW-14 himself has admitted that he had not seen the doctor signing earlier and did not know the doctor. In any case, the document Ex.PS has also not been signed by the doctor. The statement having been recorded after 1 hour of the incident, there was sufficient time to summon a Magistrate particularly when ASI Himmat Singh, PW-14 had come to know about the reference of Sweety from hospital in Fatehgarh Sahib to Rajindra Hospital, Patiala at 10.30 p.m. on 1st of October, 1998. The sequence otherwise developed by ASI Himmat Singh, PW-14 that he reached Patiala at 5.13 a.m,. on 2nd of October, 1998 whereas Ex.PR/1, the endorsement also reflects the same time i.e. 5.13 a.m. on 2nd of October, 1998. It is surprising to note that ASI Himmat Singh reached Patiala at 5.13 a.m. i.e. the same time when endorsement Ex.PR has been given by the doctor. ASI Himmat Singh had no vehicle with him. Thus, in the absence of any medical evidence reflecting the mental state of Sweety before giving her statement, Ex.PS when considered in relation to the extent of burn injuries that she received 11 hours prior to the incident, convinces us that the investigating agency has resorted to padding. 28. Considering the other argument raised on behalf of the appellants, we find that Kiran was living in Chandigarh with her husband having been married 15 years before the incident. Raj Kumar and Shakuntla had a separate residence as per the Investigating Officer, SHO Rajesh Kumar, PW-15. We also find support from the judgment of the Honble Supreme Court in the case of kuneer Khans case (supra) and find that the prosecution has indulged in false implication of all the relatives of the husband although they were living separately. 29. However, it stands established that Sweety deceased was in the house of Balwinder Kumar. The prosecution case to the extent of culpability of Balwinder Kumar is reliable. Balwinder Kumar was medico legally examined and was found to have burn injuries on right hand. Therefore, the presence of Balwinder Kumar at the place of incident on account of the injuries received cannot be disputed and the evidence in this regard is clinching. The prosecution case to the extent of culpability of Balwinder Kumar is reliable. Balwinder Kumar was medico legally examined and was found to have burn injuries on right hand. Therefore, the presence of Balwinder Kumar at the place of incident on account of the injuries received cannot be disputed and the evidence in this regard is clinching. The statements of the witnesses have to be analysed so as to separate chaff from the grain. Considering the evidence and all the aspects of the case, there is no material to establish beyond a shadow of doubt that Raj Kumar (since deceased) and Shakuntla were living in the house of Balwinder Kumar. Evidence to the contrary is available by way of statement of the Investigating Officer himself. Likewise, Kiran had been living in her matrimonial home for the last 15 years. 30. In the result, we accept the appeal of Shakuntla wife of Raj Kumar and Kiran wife of Sushil Kumar whereas the appeal filed by Balwinder Kumar son of Raj Kumar stands dismissed. The judgment of the conviction and order of sentence against Balwinder Kumar son of Raj Kumar are accordingly upheld.