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2006 DIGILAW 1942 (PNJ)

State Of Haryana v. Devinder

2006-05-05

A.N.JINDAL, AMAR DUTT

body2006
Judgment Amar Dutt, J. 1. The State of Haryana has filed the present appeal to challenge the judgment of acquittal of the respondent of the charge framed against him passed by the Sessions Judge, Gurgaon on 22.12.1997. 2. Briefly stated, the facts of the prosecution case as brought out in the testimony of its witnesses are that the respondent was living with his wife Hiramani and children in House No. 155, Vishnu Garden, Gurgaon, which had been constructed by him about 5/6 years ago. Being employed in Delhi, he used to commute daily to his place of work, probably, on account of the fact that he suspected the fidelity of his wife. Invariably after returning from his place of work, he would not only enquire from his wife as to how many husbands she had but also would beat her. On account of this Raj Kumar brother, Ram Phal, father and Imrat mother of Hiramani had gone to the house of Devinder and made efforts to convince him that his apprehensions were ill-founded. After giving them their advice, they had returned to their residences. 3. On 20.4.1995, when in the morning Devinder, Hiramani and Pinki Lata their daughter were present in their house, Devinder started beating Hiramani. He kept on telling her that henceforth she would not move out of the house and he would continue to beat her in this manner. At about 4.00 p.m., Hiramani bolted the door from inside and after sprinkling kerosene on her body set herself ablaze. This occurrence was witnessed by Devinder, who was standing outside the room. Pinki Lata, who was aged about 12/13 years tried to put off the fire by throwing water from the window. She knocked at the door but her father told her that it would not be of any use. On the noise being raised by her, the neighbourers came there and stated to break open the door but they were not permitted to do so by Devinder. According to Pinki Lata, her mother died by putting herself on fire as she was fed up with the daily atrocities of her father. 4. Later in the day, when Pinki Lata was proceeding to Police Station to lodge the report, she met ASI Sumer Singh PW-9 in Rajindra Park and narrated her version to him on the basis whereof formal FIR Ex. 4. Later in the day, when Pinki Lata was proceeding to Police Station to lodge the report, she met ASI Sumer Singh PW-9 in Rajindra Park and narrated her version to him on the basis whereof formal FIR Ex. PW/1 was recorded under Section 306 of the Indian Penal Code. 5. Thereafter, the Investigating Officer went to the spot, prepared rough site plan Ex. PL, inquest report Ex. PC and took into possession the bottle containing kerosene, match box, broken bangles and burnt pieces of clothes through separate parcels after putting them into a sealed parcel. The place of occurrence was photographed by Purshotam Lal PW-5 and the dead body was sent for post-mortem through Constable Bhim Singh and Head Constable Randhir Singh. On 21.4.1995, the Medical Officer conducted post-mortem on the dead body of Hiramani and vide report Ex. PA opined that death was due to shock caused by extensive burns. He further indicated that the total burnt area was about 85% and burns were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. 6. On 22.4.1995, when ASI Sumer Singh was present in Police Post, Ram Phal father and Raj Kumar brother of the deceased produced three letters Ex. PF to PH before him, which were taken into possession through recovery memo Ex. PN. The respondent was arrested on 26.4.1995 by the Investigating Officer. On 1.5.1995, statement of Pinki Lata was recorded under Section 164 of the Code of Criminal Procedure by the Judicial Magistrate Ist Class, Gurgaon and on completion of the investigation, a challan was put in against the respondent in the Court of the Ilaqa Magistrate, who committed the same for trial to the Court of Sessions. The Sessions Judge framed charge under Section 302 of the Indian Penal Code against the respondent. Since the respondent pleaded not guilty, the prosecution was called upon to examine its witnesses. 7. In order to prove its case, the prosecution examined Dr. Sanjay Narula PW-1, Mool Chand Punia PW-2, Mahinder Singh PW-3, Pinki Lata PW-4, Purshotam Lal PW-5, Raj Kumar PW-6, Ram Phal PW-7, R.S. Baswana PW-8 and SI Sumer Singh PW-9. 8. Since the respondent pleaded not guilty, the prosecution was called upon to examine its witnesses. 7. In order to prove its case, the prosecution examined Dr. Sanjay Narula PW-1, Mool Chand Punia PW-2, Mahinder Singh PW-3, Pinki Lata PW-4, Purshotam Lal PW-5, Raj Kumar PW-6, Ram Phal PW-7, R.S. Baswana PW-8 and SI Sumer Singh PW-9. 8. When examined under Section 313 of the Code of Criminal Procedure in order to explain the incriminating circumstances appearing in prosecution evidence against him, the respondent admitted the occurrence and gave the following explanation :- "My wife was of loose character and used to go out of the house to meet her paramours in my absence and for that reason I used to ask her to give up her relations with those persons and not to go out of the house, regarding which dispute had taken place number of times, for this reason my wife committed suicide. I am innocent." He, however, led no evidence in support of its case. 8 After hearing arguments, the trial Court came to the conclusion that neither the case under Section 302 of the Indian Penal Code was made out nor could the appellant be held guilty under Section 306 of the Indian Penal Code and acquitted him of the charge framed against him. 9. We have heard Mr. B.S. Rana, Senior Deputy Advocate General, Haryana, appearing on behalf of the State and Mr. Sanjeev Sheoran and Mr. Ravi Kumar appearing on behalf of the respondent and have perused the record. 10. The short point, which has been urged on behalf of the State by Mr. Rana, Senior Deputy Advocate General, is that taking into consideration the stand of the respondent, there was no reason as to why the respondent should not have been convicted under Section 306 of the Indian Penal Code. Since the inferences projected could be drawn on the basis of the fact, we had asked Mr. Rana to look up whether it would be possible for us to convict the respondent under Section 306 of the Indian Penal Code when Devinder had not been charged for the alternative offence. 11. On 18.4.2006, Mr. Rana was fair enough to concede that judicial precedent does not permit us to do so. Rana to look up whether it would be possible for us to convict the respondent under Section 306 of the Indian Penal Code when Devinder had not been charged for the alternative offence. 11. On 18.4.2006, Mr. Rana was fair enough to concede that judicial precedent does not permit us to do so. He brought to our notice the view of the Apex Court in Sangarabonia Sreenu v. State of Andhra Pradesh, AIR 1997 SC 3233, wherein it was held as under :- "Where the accused was acquitted of charge under Section 302, Penal Code, which was the only charge framed against him, the High Court could not convict him of offence under Section 306, Penal Code. It is true that Section 222, Cr.P.C. entitles a Court to convict a person of an offence which is minor in comparison to the one for which he is tried but Section 306 IPC cannot be said to be a minor offence in relation to an offence under Section 302 IPC within the meaning of Section 222, Cr.P.C. for the two offences are of distinct and different categories. While the basic constituent of an offence under 302 IPC is homicidal death those of Section 306 IPC are suicidal death and abetment thereof." In view of the above legal position, we find no merit in this appeal and the same is dismissed.