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2007 DIGILAW 11 (PNJ)

Pawan Kumar v. State of Punjab

2007-01-08

ADARSH KUMAR GOEL, H.S.BHALLA

body2007
JUDGMENT H.S.BHALLA, J. 1. 23rd April, 1993 was declared as a black day for the accused when a case was registered against them on account of an occurrence, which took place at about 10.00 A.M. on that date in the area of Gita Colony, Jagraon, Ludhiana and ultimately, Kanta Rani met her edge of doom on April 26, 1993 on account of burn injuries. The accused were sent up for trial and the learned Additional Sessions Judge, Ludhiana, vide his judgment/order dated April 28,1997 acquitted accused Pavittar Kumar and Sureshta Devi, his wife, whereas appellant Pawan Kumar was convicted for an offence punishable under Section 302 of the Indian Penal Code and accordingly, he was sentenced to imprisonment for life and was also directed to pay a fine of Rs.5,000/-and in default of payment of fine, he was ordered to undergo rigorous imprisonment for a further period of one year. This order of conviction necessitated the filing of the appeal in hand. 2. The other facts required to be noticed for the disposal of this appeal are that on April 23,1993, Assistant Sub Inspector Satwant Singh posted in Police Post Hira Bagh, Police Station Jagraon, recorded statement of deceased Kanta Rani, wherein she disclosed that she was married about 08 years ago with Pawan Kumar and out of this wedlock, they were blessed with one male and female child. She further disclosed that on that date at about 10.00 A.M., she asked her husband to attend to his work, but he started abusing her by calling bad names. In the meantime, the elder brother of her husband Pavittar Kumar and his wife Sureshta arrived there and they also started abusing her. They told her husband that she be finished and they would arrange his second marriage. She was caught hold of by her brother-in-law and sister-in-law in the kitchen and her husband put kerosene on her and lighted match stick and put her on fire. She raised an alarm for her safety and was rescued by neighbours. Subsequently, she was got admitted by her husband in the Civil Hospital, Jagraon, from where she was referred to Civil Hospital, Ludhiana, where her treatment was going on. She further disclosed that she was put on fire, inasmuch as all the three accused wanted to arrange second marriage of Pawan Kumar. On the basis of this statement, Ex. Subsequently, she was got admitted by her husband in the Civil Hospital, Jagraon, from where she was referred to Civil Hospital, Ludhiana, where her treatment was going on. She further disclosed that she was put on fire, inasmuch as all the three accused wanted to arrange second marriage of Pawan Kumar. On the basis of this statement, Ex. PK, a formal FIR was registered against the accused. The statement of Om Parkash was also recorded and the Investigating Officer inspected the place of occurrence and took into possession a plastic can containing 1-1/2 litres of kerosene oil, burnt stick and burnt clothes and after converting them into a parcel, the same were taken into possession through recovery memo. Site plan, Ex. PA, was prepared. On April 24,1993, Pawan Kumar and Pavittar Kumar were arrested from Bus Stand Jagraon and on April 26, 1993 he has received intimation, Ex.PV, from C.M.C. & Hospital, Ludhiana about the death of Kanta Rani and after reaching the Hospital on April 27,1993, he prepared inquest report, Ex. PD and sent the dead body for post mortem examination through constables Iqbal Singh and Gurmit Singh to Civil Hospital, Ludhiana. The offence was converted into under Section 302 of the Indian Penal Code. Dr. Balbir Singh produced one parcel containing clothes of the deceased in sealed condition and this parcel was taken into possession vide recovery memo, Ex. PX. Surestha accused was arrested on May 24,1993. After completion of investigation and the other necessary formalities, challan was presented against the accused and they were sent up for trial. 3. Accused Pawan Kumar was charge sheeted under Section 302 read with Section 34 of the Indian Penal Code. However, as already stated above, the other two accused, namely, Pavittar Kumar and Sureshta Devi, his wife, were acquitted of the charge, whereas accused Pawan Kumar was convicted and sentenced. 4. Prosecution, in support of its case, examined as many as seven witnesses, namely, Karamjit Singh (PW-1), Dr. U.S.Sooch (PW-2), Dr. Balbir Singh, Senior Medical Officer (PW-3), Om Parkash (PW-4), Govardhan Lal (PW-5), E.Rai Singh, Medical Record Officer (PW-6) and Sub Inspector Satwant Singh (PW-7). 5. 4. Prosecution, in support of its case, examined as many as seven witnesses, namely, Karamjit Singh (PW-1), Dr. U.S.Sooch (PW-2), Dr. Balbir Singh, Senior Medical Officer (PW-3), Om Parkash (PW-4), Govardhan Lal (PW-5), E.Rai Singh, Medical Record Officer (PW-6) and Sub Inspector Satwant Singh (PW-7). 5. Accused Pawan Kumar when examined under section 313 of the Code of Criminal Procedure has stated that Om Parkash, father of the deceased wife, made a false statement since he was feeling that accused were responsible for the death of his daughter and the police had fabricated the dying declaration and the same was prepared after consultations and in connivance with Om Parkash and in fact, on April 22,1993, his wife Kanta Rani was preparing break fast after sending the children to the school and her clothes caught fire accidentally and she was engulfed into fire and in order to save her, he put a blanket around her. In the meantime, Rajinder Kumar, whose house is opposite to his house, arrived there on hearing the shrieks of his wife and helped him in extinguishing the fire. Immediately thereafter, she was removed to Civil Hospital, Jagraon for treatment. He further disclosed that police recorded a false statement against him in connivance with Om Parkash and his relations. In fact, his father-in-law Om Parkash was putting pressure upon him to sell the house to which he did not agree and a false case was registered to blackmail him and grab his property and in fact, Kanta Rani had disclosed to the doctor that she had received accidental burns. In support of his defence, accused examined Rajinder Kumar (DW-1) and he disclosed that he lives in the neighbourhood of Pawan Kumar and on April 22,1993, he heard shrieks of the wife of Pawan Kumar and he immediately rushed there and found that Pawan Kumar was extinguishing the fire, which had engulfed his wife. He also assisted him and thereafter, he removed his wife in burnt condition to the Civil Hospital. 6. We have heard the learned counsel for the parties and perused the record minutely. 7. He also assisted him and thereafter, he removed his wife in burnt condition to the Civil Hospital. 6. We have heard the learned counsel for the parties and perused the record minutely. 7. The learned counsel appearing for the appellant has vehemently contended that no strong motive was provided by the prosecution for committing the murder of Kanta Devi and in fact, appellant Pawan Kumar has been falsely implicated and a false case was registered against him at the instance of Om Parkash (PW-4), who is the father-in-law of the appellant, to blackmail him and grab his property and on this short ground alone, appellant is liable to be acquitted. Learned counsel has further submitted that the statement suffered by deceased Kanta Devi before Sub Inspector Satwant Singh (PW-7), which has been recorded by him, and is being termed as the dying declaration of the deceased, is not admissible and no reliance can be placed on the same. Firstly, dying declaration, which could be relied upon as an evidence, must be made before a Magistrate and since it is made before a police officer, the same loses its significance and no explanation was offered by the prosecution as to why dying declaration was not made in the presence of a Magistrate. Learned counsel has further submitted that the presence of Om Parkash (PW-4) at the scene of occurrence, is doubtful and then again no father would allow his daughter to be burnt in his presence in the manner suggested by the prosecution. 8. We have considered the contentions raised by the learned counsel appearing for the appellant and the same have been scrutinised by us in view of the evidence available on record. The contention of the learned counsel regarding motive part is liable to be rejected and the appellant is not entitled to acquittal merely on this short ground alone, because we are of the opinion that the motive is state of mind of the culprit and this element exclusively remains hidden in it and specially when it sprouts for the commission of offence that cannot be judged precisely. It is neither obligatory nor incumbent on the part of the prosecution to prove the motive but if it can provide to the Court for appreciating the evidence, this would be additional circumstance to prove the chain of the version. It is neither obligatory nor incumbent on the part of the prosecution to prove the motive but if it can provide to the Court for appreciating the evidence, this would be additional circumstance to prove the chain of the version. Most heinous offences are committed for petty matters and some time for no motive, but the Court cannot sit idle and shift its responsibility to arrive at a particular conclusion as to who is responsible for the commission of the offence. In order to conclude with regard to the motive in this case, we would finally like to observe that motive is not deciding factor in a criminal case and absence of motive does not speak of the innocence of the accused, where direct evidence against the accused is overwhelming. 9. It is an admitted case of the parties that Kanta Devi died on account of burn injuries, which were suffered on April 22,1993 at about 10.00 A.M. at her residence as disclosed by Om Parkash, the father of the deceased, who stepped into the witness box as PW-4. This star witness of the prosecution categorically deposed that on April 22,1993, he was present at the house of his daughter when this occurrence took place. Before we proceed further in the matter, since the entire case revolves around the testimony of Om Parkash (PW-4), who has witnessed the entire occurrence, it is necessary to reproduce the relevant portion of his statement, which runs as under:- “On 22.4.1993 at about 10.00 A.M. I went to the house of my daughter and found that Pavittar Kumar and Sureshta Devi accused had caught my daughter from arms and Pawan Kumar was pouring the kerosene oil on her. My daughter was raising the alarm NA MARO NA MARO. I also raised the alarm but no avail. Pawan Kumar set the deceased on fire after lighting a match stick. Thereafter all the three accused ran away. I tried to extinguish the fire. I put a wet blanket around the deceased. After about half an hour, Pawan Kumar accompanied by Pavittar Kumar again came there. Both of them then took her to the hospital at Jagraon” 10. Pawan Kumar set the deceased on fire after lighting a match stick. Thereafter all the three accused ran away. I tried to extinguish the fire. I put a wet blanket around the deceased. After about half an hour, Pawan Kumar accompanied by Pavittar Kumar again came there. Both of them then took her to the hospital at Jagraon” 10. The statement of Om Parkash, father of the deceased, does not inspire confidence and it clearly spells out that truth is not coming out of the mouth of this witness and the facts and circumstances are beating a drum of introducing this witness later on and in fact, he was not present at the spot since he has not suffered any burn injury during this whole episode while extinguishing the fire. In such like circumstances, we have no hesitation to observe that Om Parkash (PW-4) was not present at the spot otherwise, he would certainly have intervened to save the life of his daughter and would not remain as a silent spectator, particularly when his daughter was being set on fire. The prosecution has developed its case on a sandy foundation on the shoulder of Om Parkash (PW-4), which is bound to collapse, who is certainly an interested witness and is interested in the success of the prosecution case. It is settled law that the evidence of relation witnesses does not make their evidence unreliable, but it certainly puts the Court to scrutinise their evidence with more than ordinary care and in the instant case, we do not feel satisfied that the evidence of interested witness has a ring of truth and moreover, at the cost of repetition, we would like to observe that no father would allow his daughter to die in front of his eyes without any intervention. All this clearly spells out that Om Parkash (PW-4) was not present at the scene of occurrence. 11. Faced with this situation, the prosecution case now revolves around on the platform of dying declaration. It is crystal clear that the statement of the deceased was recorded by Satwant Singh, Sub Inspector (PW-7) on April 23,1994 and deceased succumbed to her injuries on April 26,1993 after a lapse of about three days and meaning thereby that, there was sufficient time for the statement to be recorded by a Magistrate or even a doctor. It is crystal clear that the statement of the deceased was recorded by Satwant Singh, Sub Inspector (PW-7) on April 23,1994 and deceased succumbed to her injuries on April 26,1993 after a lapse of about three days and meaning thereby that, there was sufficient time for the statement to be recorded by a Magistrate or even a doctor. The admission of this witness that he did not make any attempt to get the statement of Kanta Rani recorded by any Magistrate, though she survived for four days thereafter, has added another nail to the coffin of the prosecution case and it appears that the statement of Kanta Rani was recorded in connivance with Om Parkash (PW-4). Immediately thereafter, Satwant Singh, Sub Inspector, (PW-7) sent ruqa to the Police Station and this fact is duly admitted by this witness during the course of his cross-examination. There was sufficient time for the statement to be recorded by a Magistrate, but even then no effort was made. Taking this aspect of the matter cumulatively, it appears difficult for us to accept this statement or to base the conviction of the appellant solely on this weak type of dying declaration. We are conscious of this fact that a dying declaration recorded by a police officer can be looked into by the Court and it is not a mandate of law that the police officer would not record a dying declaration, but at the same time keeping in view the facts and circumstances of this case, when sufficient time was available for the statement to be recorded by a Magistrate, then recording of the statement by a police officer certainly creates a ring of doubt around the prosecution version. The absence of a Magistrate or a doctor is required to be explained if the prosecution wants the Court to place reliance on the dying declaration recorded by the police officer. In the present case, what to talk of explanation, it is categorically admitted by Satwant Singh, Sub Inspector (PW-7) that no effort was made by him to get the statement of Kanta Rani recorded by any Magistrate. In the present case, what to talk of explanation, it is categorically admitted by Satwant Singh, Sub Inspector (PW-7) that no effort was made by him to get the statement of Kanta Rani recorded by any Magistrate. We would also like to observe that it is ipso facto clear from the statement of the deceased that she was admitted in Civil Hospital, Jagraon by her husband and the conduct of the accused in this regard is wholly consistent with that of innocent husband whose wife has died due to burning. If the accused had any intention to kill her wife, he would be the last person to remove her to the hospital and moreover, as per the statement of Om Parkash (PW-4), the accused fled away from the scene of occurrence, but came back after half an hour. If the accused had burnt his wife and fled away from the scene of occurrence, as disclosed by Om Parkash, the father of the deceased (PW-4), he would not come back to the place of occurrence. It appears that the deceased caught fire accidentally or in other words, she attempted to commit suicide and since her husband was present in the house, he removed her to the hospital. We are, therefore, satisfied that the innocence of the appellant is well established from the record and the judgment under appeal appears to be one sided. To say a word about the fairness of the investigation, it may be pointed out here that the investigator did not opt to press the service of the Magistrate for recording the statement of the deceased. Satwant Singh, Sub Inspector (PW-4) has categorically admitted that no effort was made by him to get the statement of deceased Kanta Rani recorded by a Magistrate. After having gone through the evidence available on the record, we also find that no case is made out even to record a conviction of the appellant under Section 306 of the Indian Penal Code and the trial Court appears to have been swayed more by the fact that a newly married bride had been burnt than by a judicial analysis of the evidence on record. For recording the conviction, the Court has primarily dependent upon the statement of Om Parkash, father of the deceased (PW-4) and the dying declaration recorded by the police officer, but in view of the facts and circumstances, as discussed above, no reliance can be placed on such a dying declaration and even the presence of Om Parkash (PW-4), in view of the reasons discussed abov, at the place of occurrence is highly doubtful. 12. For the foregoing reasons, while setting aside the judgment under appeal, we acquit the appellant of the charge levelled against him. He is on bail. His bail bonds are discharged. 13. It is pity that the death of Kanta Rani remained unheard and unnoticed.