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2008 DIGILAW 902 (PNJ)

Mukesh Kumar v. State Of Haryana

2008-04-22

ADARSH KUMAR GOEL, S.D.ANAND

body2008
Judgment S.D.Anand, J. 1. Appellant Mukesh Kumar impugns the validity of his conviction, at the hands of the learned Trial Judge, on a charge under Section 302 IPC. The allegation is that, on being spurned by his lady love, the jilted lover in the appellant set her afire and also sustained burns in that process. 2. The deceased was wife of PW 2 Kamal Singh. The couple, along with their daughter were initially residing at Rohtak. From there, they shifted to village Patwapur. It is from there only that they shifted to village Sirhole where they occupied tenanted premises owned by PW 1 Amarjit Singh. Kamal Singh suspected that his wife (deceased Kanta) had illicit relations with appellant Mukesh Kumar. On the relevant date, PW 2 Kamal Singh was at his place of employment in Munzal Shora Factory at Gurgaon. Sometime, after about 5.30 PM, PW 1 Amarjeet Singh spotted deceased Kanta and also appellant Mukesh Kumar emerging out of the tenanted Chaubara while both of them were "in burnt condition". Appellant Mukesh jumped from the roof into the gallary on the ground floor. The fire on the person of Kanta was extinguished by PW 1 Amarjeet Singh "with the help of sand". Kamal Singh was summoned from his place of employment, through one Billu. On reaching home, Kamal Singh found that though the fire had been extinguished, there were burn injuries on the body of his wife Kanta and also that of appellant Mukesh Kumar. He took both of them to Sarswati Hospital, Gurgaon, from where they were referred to Medical College & Hospital, Rohtak where Kanta succumbed to the injuries on 26.7.1995. 3. The prosecution examined PW 1 Amarjeet Singh, (whose house was under the occupation of PW 2 Kamal Singh and his family), PW 2 Kamal Singh (husband of deceased Kanta/first informant), PW 3 Hazari (father of PW 2 Kamal Singh) to prove the essential charge against the appellant. PW 5 Constable Sharwan Kumar had prepared the scaled site plan Ex.PC of the place of occurrence on 10.8.1995. PW 6 ASI Bijender Singh, then posted at Police Station Sadar, Gurgaon, recorded formal FIR Ex.PE/1, on receipt of the ruqqa Ex.PE. PW 5 Constable Sharwan Kumar had prepared the scaled site plan Ex.PC of the place of occurrence on 10.8.1995. PW 6 ASI Bijender Singh, then posted at Police Station Sadar, Gurgaon, recorded formal FIR Ex.PE/1, on receipt of the ruqqa Ex.PE. PW 7 ASI Balbir Singh (then posted at Police Station, Dundahera) had partly investigated this case inasmuch as he had recorded the statements under Section 161 Cr.PC of Constable Zile Singh and Constable Surender Singh, PW 8 Constable Surender Singh, PW 9 Constable Zile Singh and PW 10 HC Ram Kumar tendered their affidavits, representing evidence of formal character, in to evidence. Their affidavits are Ex.PF, Ex.PG and Ex.PH respectively. PW 12 ASI Vidya Nand is the Investigating Officer of this case. PW 13 Inspector Ram Phal, then posted as SHO Police Station, Gurgaon, had filed the report under Section 173 Cr.PC in this case. 4. PW 4 Dr. R.P. Gupta, Medical Officer, Sarswati Hospital, Gurgaon, proved the hospitalisation of Kanta and Mukesh over there and also the fact that he sent intimation Ex.PB to the police with regard to their admission. 5. PW 11 Dr. Sushma Jain had conducted the post-mortem examination on the dead body of Mst. Kanta and had found the following injuries on her person :- "1. Superficial to deep infacted burn was present all over the body except on sole of both feet and scalp. 2. Sinzing of scalps and pubic hair was present. 3. Red line of demarcation was present between healthy and burn area. 4. Soot particles was present intraches. 5. At places blebs was present. 6. Infected unhealthy granalation tissue was present in burn area." She opined that "the cause of death of deceased was shock which was due to massive burns and its complications described above which were ante-mortem in nature and sufficient to cause death in natural course of nature." 6. Dr. Ganju was given up by the learned Public Prosecutor as unnecessary "because his address is not available as per report of the Constable." 7. Dr. Micheal Jisus, Medical Officer, Rohtak and Dr. V.S. Wedh were given up by the learned Public Prosecutor with the following statement :- "Head Constable had taken the summons of Dr. Micheal Jisus Medical Officer, Rohtak, son of Sh. Dr. Micheal Jisus, Medical Officer, Rohtak and Dr. V.S. Wedh were given up by the learned Public Prosecutor with the following statement :- "Head Constable had taken the summons of Dr. Micheal Jisus Medical Officer, Rohtak, son of Sh. C.M. Jose r/o 363/11, Chiriyan Bandath House Trichur (Kerala) in order to effect his service but he has reported on the summons that no person with the above named has been residing at the given address. Efforts have been made several times to get the service effected. Same is the position with regard to the Dr. V.S. Wedh. Several times summons were entrusted but very time it has been reported that he has not been working in the institute any more. No other address is available of this witness. Under the circumstances I give up Dr. Micheal Jisus and Dr. V.S. Wedh and close the case of the prosecution." The appellant raised the plea of innocence with the following averment :- "I am innocent. I had gone to the house of Kamal Singh with my friend Billu. Kanta told me that her husband had stated to her that he had a doubt that she was having illicit relations with me. I told her that I would talk to Kamal Singh. Kanta could not bear the allegation made against her by her husband and then Kanta put herself on fire. Due to fear I also put myself on fire. Kanta never made any statement on 22.7.95 to the police. She did not talk at all on that day. I was present in the hospital. I remained admitted in Jai Parkash Hospital, Delhi upto August 1997. I was arrested after August 1997 by the police in this case. I was arrested on 8.8.1997." No evidence was adduced by the appellant in defence. We have heard learned counsel for the parties. 8 It would be apparent from the judgment under challenge that the learned Trial Judge has placed implicit reliance upon the dying declaration recorded by ASI Vidya Nand. The defence grievance with regard to the non-proof of the fact that she was fit to make a dying declaration was discarded by the learned Trial Judge. 8 It would be apparent from the judgment under challenge that the learned Trial Judge has placed implicit reliance upon the dying declaration recorded by ASI Vidya Nand. The defence grievance with regard to the non-proof of the fact that she was fit to make a dying declaration was discarded by the learned Trial Judge. Qua the non production of the medical officers who were averred to have recorded endorsements Ex.PK/1 ( 24.2.95 at 2.45 PM) to the effect that Kanta was not fit to make a statement, the learned Trial Judge recorded that the prosecution could not be blamed for the non availability of those Medical Officers. 9. We find the finding of conviction to be unsustainable. The reasons therefor are indicated as under :- There is plethora of law on the point that a conviction can be based upon a dying declaration, provided there is proof to the effect that the injured was indeed in a position to make that statement. It is a general practice on the part of the Investigating Agency to obtain medical opinion (with regard to the fitness of the maker of the statement) from the treating doctor. Ofcourse, the obtaining of that certification is basically a rule of prudence and it cannot be held as a general proposition of law that a dying declaration, which is otherwise acceptable at law, would be thrown out of consideration just because the Investigating Officer had not obtained the medical certification about the fitness of the maker of the statement. At the same time, it requires particular notice that the present is a case of its peculiar type in which the precise grievance raised by the defence is that the deceased having sustained massive burns could just not be in a position to utter a word and sustenance in the relevant behalf is drawn from the fact that it was her left foot toe impression which was obtained by the Investigating Officer on the alleged dying declaration. Examined on the established touch stone of appreciation of evidence, in its relatability to the facts obtained on the present file, we find that the dying declaration is not worthy of being acted upon to the detriment of the appellant. 10 Dr. Sushma Jain, who conducted the post mortem examination on the dead body of Kanta, recorded a finding that Kanta died of massive burns. 10 Dr. Sushma Jain, who conducted the post mortem examination on the dead body of Kanta, recorded a finding that Kanta died of massive burns. The alleged dying declaration was recorded on 22.7.1995. It is in the statement of none else or other than PW 2 Kamal Singh (husband of Kanta deceased) himself that he remained with Kanta from 20.7.1995 to 26.7.1995 till her death and that she never regained consciousness after being taken from Gurgaon to Medical College and Hospital, Rohtak, and that his parents and that of Kanta came over to Medical College and Hospital, Rohtak, and they remained with her till her death. Though, Kamal Singh was declared hostile by the prosecution, we do not find any taint in his testimony. While appreciating his deposition in the relevant behalf, we cannot be unmindful of the fact that he is a husband who, on his own showing, had a suspicion that the appellant was having illicit relations with his wife. Even while entertaining that grievance, he did not wish to tell a lie to implicate the appellant. He testified in his examination-in-chief that "My wife told me that she and Mukesh had intentionally put themselves on fire. My wife never told me that Mukesh had set her ablaze." In the totality of the above indicated circumstances, the controversy with regard to the fitness or otherwise of Kanta to make statement Ex.PE becomes very relevant. As per the Investigating Officer PW 12 ASI Vidya Nand, he went over to Saraswati Hospital, Gurgaon, on receipt of a V.T. Message regarding the hospitalisation of the appellant and also Kanta over there and filed an application (Ex.PK) to obtain the medical opinion about the fitness or otherwise of Kanta and also the appellant Mukesh to make a statement. It is further in his testimony " In my presence the doctor had written the endorsement Ex.PK/1 and Ex.PK/2 ". Those two doctors were not examined by the prosecution on the pretext that their addresses were not available. Assuming, for the sake of arguments, that the stance taken up by the prosecution in the relevant behalf is correct, the prosecution could very well have examined some other medical officer/colleague of the two doctors to prove their handwriting/initials on endorsements Ex.PK/1 and Ex.PK/2. The prosecution did not do the needful. Assuming, for the sake of arguments, that the stance taken up by the prosecution in the relevant behalf is correct, the prosecution could very well have examined some other medical officer/colleague of the two doctors to prove their handwriting/initials on endorsements Ex.PK/1 and Ex.PK/2. The prosecution did not do the needful. It is in the Medical College and Hospital, Rohtak that the Investigating Officer again filed an application Ex.PL to obtain medical opinion about the fitness of Mst. Kanta to make a statement. She was declared fit to make a statement vide endorsement Ex.PL/1 which the Investigating Officer claimed to have been made by the Medical Officer in his presence. Further, the Investigating Officer conceded that he did not record any statement under Section 161 Cr.PC of that Medical Officer. He did not recollect the name of the Medical Officer and told the Court that he could indicate the name only after perusing the case diary. That Medical Officer was not produced at the trial. By the very nature of things, it is that Medical Officer only who could clear the mist (in the context of the controversy about the fitness or otherwise of Mst. Kanta to make a statement) by owning of the endorsement (Ex.PL) attributed to him. As already indicated (in the context of the non-production of the authors of endorsements (Ex.PK/1 and Ex.PK/2), even the author thereof (i.e. Ex.PL) was not available/traceable, the prosecution could well have examined some colleague of his who could identify the handwriting/signatures of that Medical Officer. After all, it is nobodys case that the institute (Sarswati Hospital) has ceased to exist or that there were no colleagues of the purported author of Ex.PL who could do the needful. His production was very important for appreciation of the grievance of the defence. Apart therefrom, the Investigating Officer, on his own showing, did not visit the Medical College and Hospital, Rohtak, during the period from 22.7.1995 to 26.7.1995. He also did not get the dying declaration recorded by a Magistrate. His production was very important for appreciation of the grievance of the defence. Apart therefrom, the Investigating Officer, on his own showing, did not visit the Medical College and Hospital, Rohtak, during the period from 22.7.1995 to 26.7.1995. He also did not get the dying declaration recorded by a Magistrate. In order to explain why he did not take steps to get the dying declaration recorded by a Magistrate, he testified that "If the Medical Officer had refused to be present at the time when I recorded the statement of Kanta then I would have requested the Magistrate to record her statement." The explanation furnished is frivolous on the face of it because the relevant medical officer has not been examined. Even otherwise, the refusal or otherwise of the Medical Officer to be present had nothing to do with the refrain on the part of the Investigating Officer to get the dying declaration recorded from a Magistrate. The Investigating Officer does not inspire confidence of this Court because he did not even visit the Medical College and Hospital, Rohtak during the period 22.7.1995 to 26.7.1995. 11. The present is, thus, a case where the essential sustenance for proof of the charge is drawn by the prosecution from the dying declaration alleged to have been made by Mst. Kanta. That dying declaration had been recorded by a Police Officer. There is no substantive proof on the file that the maker thereof was fit to make a statement. Her own husband has testified that she remained unconscious throughout till death. His statement that his own parents and also the parents of the deceased remained with her till she breathed her last. There is no convincing evidence on the file to prove that there was no Magistrate or Medical Officer available for recording the dying declaration. Under these peculiar circumstances, we do not feel pursuaded to rely upon the dying declaration aforementioned. 12. In the light of the foregoing discussion, we hold the finding of conviction recorded by the Trial Court to be thoroughly unsustainable. We set it aside. The appeal shall stand allowed. The appellant is acquitted of the charge.