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Punjab High Court · body

2009 DIGILAW 4 (PNJ)

Milap Kumar S/o Nand Ram v. State Of Punjab

2009-01-06

K.S.GAREWAL, SHAM SUNDER

body2009
Judgment SHAM SUNDER, J. 1. This appeal is directed against the judgment of conviction, and the order of sentence, dated 9-11-1999, rendered by the Court of Sessions Judge, Ferozepur, vide which it convicted the accused (now appellant), for the offence, punishable under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life, and to pay a fine of Rs. 5000/-, or in default of payment of the same, to further undergo rigorous imprisonment for one year. 2. The prosecution story proceeded, in the manner, that Raj Bala (now deceased), was married to Milap Kumar, accused (now appellant), about four years prior to 10-5-1995, the date of occurrence. On 10 5-1995, at about 2/3 P. M., the family of the accused finished their meals. Raj Bala (now deceased), went to prepare tea. Milap Kumar, accused, took Raj Bala, his wife, in a room and asked her, as to why, she was not accompanying him, to the fields, for work. Upon this, Raj Bala (now depeased), replied that as she was having small children to look after, so she was unable to accompany him, for work, in the fields Milap Kumar, accused, then threw kerosene oil, upon Raj Bala, and set her ablaze. Thereafter, the accused bolted the door from outside. On the noise, being raised by Raj Bala, she was rescued by her neighbourers. She was got admitted in Civil Hospital, Fazilka, with 80% burn injuries. Dr. V. K. Munjral, sent intimation to the Station House Officer, Police Station Sadar, Fazilka, through intimation slip (ruqa) exhibit PA, immediately after the admission of Raj Bala, in the hospital. On receipt of the written intimation, from the doctor, Gurcharan Singh, Assistant Sub Inspector, Police Station Sadra, Fazilka, reached the hospital. He moved an application exhibit PB, seeking the opinion of the doctor, as to whether, Raj Bala, was fit and conscious to make a statement. Dr. V. K. Munjral, vide endorsement exhibit PB/1, certified that the patient was unfit, to make statement, at 10.35 PM, on 10-5-1995. Thereafter, on 11-5-1995, Balwinder Singh, Sub Inspector/Station House Officer, Police Station Sadar, Fazilka, went to the hospital, where Raj Bala was admitted, with burn injuries, and moved an application exhibit PC, before the doctor, seeking his opinion, as to whether, she was conscious and fit to make statement. Thereafter, on 11-5-1995, Balwinder Singh, Sub Inspector/Station House Officer, Police Station Sadar, Fazilka, went to the hospital, where Raj Bala was admitted, with burn injuries, and moved an application exhibit PC, before the doctor, seeking his opinion, as to whether, she was conscious and fit to make statement. The doctor vide endorsement PC/1, at 10.30 AM, on 11-5-1995, opined that the patient was fit to make statement. Thereafter, Balwinder Singh, Sub Inspector/Station House Officer, recorded the dying declaration exhibit PO, of Raj Bala, in which, she stated the sequence of events, narrated hereinabove. It was read over and explained to Raj Bala, who after admitting the same to be correct, affixed her thumb impression thereon. Thereafter, Balwinder Singh, Sub Inspector, sent PO, in the form of ruqa by appending his endorsement PO/ 1, on the same, on the basis whereof, FIR P/2, was recorded by Surjit Singh, MHC. 3. Thereafter, Balwinder Singh, Sub Inspector, handed over an application to Gurucharan Singh, Assistant Sub Inspector, to bring the Sub Divisional Magistrate, for recording the dying declaration of Raj Bala. Gurucharan Singh, Assistant Sub Inspector, brought Tejpal Singh Bedi, Naib Tehsildar-cum-Executive Magistrate, Abohar, to the hospital. Tejpal Singh Bedi, recorded the statement of Raj Bala, exhibit PK, on 11-5-1995. Raj Bala, died on 14-5-1995 at 7.00 P.M. on account of the aforesaid burn injuries. On that day also, Dr. V. K. Munjral, received the dead-body of Raj Bala, along with the inquest report and request for post-mortem examination exhibit PD. He marked the same to Dr. Davinder Bhukal, vide endorsement exhibit PD/1. Dr. Davinder Bhukal, conducted the post mortem examination, on the dead body of Raj Bala (deceased). Balwinder Singh, Sub Inspector, inspected the spot, and prepared the rough site plan PQ of the place of occurrence, with correct marginal notes. He collected from the spot one cot MO/1 and Can MO/2. The same were taken into possession vide memo PM. He also took into possession, from the spot, burnt clothes i.e. piece of salwar MO/3, piece of shirt MO/4, chaddar (bed sheet) MO/3 and quilt MO/6, vide recovery memo PL. The site plan was prepared. The statements of the witnesses were recorded. Milap Kumar, accused, was arrested on 19-5-1995. After the completion of investigation, he was challaned. 4. On his appearance, in the Court of the Committing Magistrate, the accused was supplied the copies of documents, relied upon by the prosecution. The site plan was prepared. The statements of the witnesses were recorded. Milap Kumar, accused, was arrested on 19-5-1995. After the completion of investigation, he was challaned. 4. On his appearance, in the Court of the Committing Magistrate, the accused was supplied the copies of documents, relied upon by the prosecution. After the case was received, by commitment, in the Court of Session, charge under Section 302 of the Indian Penal Code, was framed against him, on 13-12-1996, which was read-over and explained to him, to which he pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Dr. V. K. Munjral (PW. 1), Dr. Ajay Kumar (PW2), Sukhdev Singh, Draftsman (PW3), Dr. Davinder Kumar, who conducted the post-mortem examination, on the dead body of Raj Bala (PW4), Tejpal Singh Bedi, Naib Tehsildar-cum-Executive Magistrate, who recorded the dying declaration exhibit PK of the deceased (PW5), Gurcharan Singh, Assistant Sub Inspector (PW6), who associated Balwinder Singh, Sub Inspector, during the course of investigation and Balwinder Singh, Sub Inspector, Investigating Officer (PW7), who recorded the dying declaration PO of Raj Bala, and conducted the investigation. 6. The Public Prosecutor, for the State, gave up, Prem Chand and Phool Piari, two prosecution witnesses, as having been won over, by the accused. 7. The statement of the accused under Section 313 Cr. P. C, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that he had gone to the place of his work, near his house. He further stated that, at about 1/1.30 P. M., he came to know, with regard to the burn injuries, suffered by his wife and, as such, came to his house. He further stated that his neighbours Bibi Bai, Puran Chand, Har Kishan and Lachhman Dass, also came to his house. The ddor was closed from inside, and flames were coming out. He further stated that he along with his neighbourers, pushed the door, and broke open the same. He further stated that all of them brought Raj Bala, out of the room, and tried to control the fire. Thereafter, they took her, to the hospital, and got her admitted there, where, the Police came, at about 3/3.30 PM. He further stated that he along with his neighbourers, pushed the door, and broke open the same. He further stated that all of them brought Raj Bala, out of the room, and tried to control the fire. Thereafter, they took her, to the hospital, and got her admitted there, where, the Police came, at about 3/3.30 PM. He further stated that his wife was telling that she was preparing milk, for children, on the stove, and the kerosene oil spread accidentally on the same (stove) from the container, and she caught fire. He further stated that the Police officials were telling that, in the first instance, the parents of Raj Bala, should come. It was further stated by him, that the parents of his wife came at night, and they started teaching her against him. He further stated that after frightening his wife, her parents encouraged her, to give a statement, against him. It was further stated that he had never given beatings to his wife. He further stated that, he being a poor person, was working as a gardner (Malli). It was further stated by him, that his wife used to go to her parents, very rarely and, therefore, he was looked down upon by his in-laws. It was further stated by him, that, on account of this reason, this false case was got registered against him. He also examined Puran Chand, DW1, and Bibi Bai, DW2, in his defence. Thereafter, he closed his defence evidence. 8. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 9. Feeling aggrieved, the instant appeal, was filed by the appellant. 10. We have heard the Counsel for the parties, and have gone through the record of the case, carefully. 11. The Counsel for the appellant, submitted that there was no motive with the accused, to cause the death of the deceased. He further submitted that there was no previous enmity, between the parties. He further submitted that, no offence, under Section 302 of the Indian Penal Code, was made out, as at the most, it could be said to be a sudden quarrel. He further submitted that, if any offence, is made out, that can, at the most be said to be under Section 304 Part II of the Indian Penal Code. He further submitted that, no offence, under Section 302 of the Indian Penal Code, was made out, as at the most, it could be said to be a sudden quarrel. He further submitted that, if any offence, is made out, that can, at the most be said to be under Section 304 Part II of the Indian Penal Code. He further submitted that even both the dying declarations i.e. PO, recorded by Balwinder Singh, Sub Inspector, and PK, recorded by Tejpal Singh Bedi, Naib Tehsildar Cum Executive Magistrate, are contradictory. 12. On the other hand, the counsel for the respondent submitted that there are no material contradictions in PO, dying declaration, recorded by Balwinder Singh, Sub-Inspector, and PK, dying declaration, recorded by Tejpal Singh Bedi, Naib Tehsildar -cum-Executive Magistrate. She further submitted that the FIR was registered, on the next day, as Raj Bala, in the opinion of the doctor, was not fit to make statement, on the day of receipt of burn injuries. She further submitted that it was the accused, who sprinkled kerosene oil upon Raj Bala, and set her ablaze. She further submitted that the statements of Puran Chand and Bibi Bai, are contradictory. She further submitted that the subsequent conduct of the accused, of not extinguishing the fire, but leaving his wife, in burning condition, also proved that he intentionally set her ablaze. She further submitted that the occurrence took place, in the house of the accused, and it was for him to explain, as to under what circumstances, the same took place, but no plausible explanation, was furnished by him. She further submitted that the trial Court, was right, in recording conviction and awarding sentence. 13. After giving our thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in our considered opinion, the contentions advanced, by the Counsel for the appellant, being without merit, deserve to be rejected, for the reasons to be recorded hereinafter. Admittedly, Raj Bala, was the wife of Milap Kumar, accused. PO, the dying declaration of Raj Bala, was recorded, by Balwinder Singh, Sub Inspector on 11-5-1995, first in point of time after obtaining the opinion of the doctor PC/1, that she was fit and conscious to make the same. It was, on the basis of PO, that the FIR was registered. PO, the dying declaration of Raj Bala, was recorded, by Balwinder Singh, Sub Inspector on 11-5-1995, first in point of time after obtaining the opinion of the doctor PC/1, that she was fit and conscious to make the same. It was, on the basis of PO, that the FIR was registered. In PO, dying declaration, Raj Bala, in clear cut terms, stated that she and her husband along with children took meals, and when she was preparing tea by feeding fire in the hearth, with the help of dry cotton sticks, Milap Kumar, accused, brought her to the room and asked her, as to why, she was not accompanying him, to the fields for work. When she told him that she was unable to accompany him, to the fields for work, as she had got small children, to look after, he told her that she was enjoying her life, and he was working in the fields. It was, at that stage, that Milap Kumar, accused, put kerosene oil upon Raj Bala (now deceased), set her ablaze, and then bolted the door of the room from outside. When she raised alarm, the neighbourers came and saved her. Thereafter, she became unconscious. She also stated in PO, that her husband used to beat her, at the instance of her mother-in-law. She, in clear cut terms, stated that kerosene oil was put on her, and she was set ablaze, by her husband, with an intention to kill her. Immediately thereafter, the dying declaration PK, was recorded by Tejpal Singh Bedi, Naib Tehsildar cum Executive Magistrate. The contents of that dying declaration are materially, in consonance with the contents of exhibit PO. However, in PK, she stated that her husband put kerosene oil upon her, but she did not know, as to who set her ablaze. She also stated in PK, that her husband bolted the door of the room from outside. She and her husband were present in the house. There is nothing, on the record, that any other adult male or female member, was present, in the house. From the sequence of events, narrated by Raj Bala, in both the dying declarations, it was proved, that it was accused only, who set her ablaze, by putting the kerosene oil upon her. There is nothing, on the record, that any other adult male or female member, was present, in the house. From the sequence of events, narrated by Raj Bala, in both the dying declarations, it was proved, that it was accused only, who set her ablaze, by putting the kerosene oil upon her. Such a minor discrepancy, occurring in PK i.e. the subsequent dying declaration of Raj Bala (now deceased), did not, in any manner, affect the merits of the case. The dying declaration was made by Raj Bala, voluntarily, without any coercion or duress. There is nothing, on the record, that anybody else was present, at the time, when her dying declarations were recorded, in the first instance, by Balwinder Singh, Sub Inspector, and subsequently by Tejpal Singh Bedi, Naib Tehsildar cum executive Magistrate. In Khushal Rao V/s. State of Bombay, AIR 1958 SC 22 : (1958 Cri LJ 106), the principle of law, laid down, was to the effect, that it cannot be laid down, as an absolute rule of law, that a dying declaration, cannot form the sole basis of conviction, unless it is corroborated. Each case, must be determined, on its own facts, keeping in view the circumstances, in which the dying declaration was made. It cannot be laid down, as a general proposition, that a dying declaration is a weaker kind of evidence, than other pieces of evidence. A dying declaration, stands on the same footing, as another piece of evidence and has to be judged, in the light pf surrounding circumstances, and with reference to the principles, governing the weighing of evidence. In K. Ramachandra Reddy and another V/s. The Public Prosecutor, (1976) 3 SCC, 618 : (1976 Cri LJ 1548), the principle of law, laid down, was to the effect, that a, great solemnity, and sanctity, is attached tq the words of a dying person, because a person, on the verge of death, is not likely to tell lies, or to concoct a case, so as to implicate, an innocent person, yet the Court has to be, on guard, against the statement of the deceased, being the result of either tutoring, prompting or product of his imagination. One thing, therefore, is well settled, that a great solemnity and sanctity, is attached to the dying declaration, as it is said that truth sits, on the lips of a dying person, expecting his or her death imminently. The dying declarations, have been subjected to indepth scrutiny, and the same have been found to be reliable. Both these dying declarations also find corroboration, through the medical evidence of Dr. V. K. Munjral, who gave the certificate, that Raj Bala, was fit and conscious to make statement, Dr. Ajay Kumar, EMO, PW2, who sent the intimation, to the Police Station, regarding the admission of Raj Bala and Dr. Davinder Kumar, Medical Officer, Civil Hospital, Fazilka, PW4, who conducted the post-mortem examination, on the dead body of the deceased. According to him, there were 1st to second degree burns, present on the body i.e. face, neck, back and front of trunk, lower limbs upto middle of legs, as also both upper limbs. The brain and pleurae were congested, trachea and larynx were congested and contained carbon particles. Right lung and left lung were congested and slightly shrunken. In the opinion of the said doctor, the death, in this case, was due to specific burns, which were ante-mortem, in nature, and sufficient to cause death, in the ordinary course of nature. Still further corroboration to the dying declarations, was furnished through cot MO/1, Can MO/2, burnt clothes i.e. piece of trouser (salwar) MO/3, piece of shirt MO/4, bed sheet (chhadar) MO/5 and quilt MO/6, which were taken into possession, from the spot, by Balwinder Singh, Sub-Inspector. There was no reason, on the part of Raj Bala, deceased, to make the aforesaid dying declarations, involving her husband, in the commission of crime, had he not actually committed the same. She knew that she had minor children and, in case, she falsely implicated her husband, in the commission of crime, there would be nobody to look after them. At least, a wife, in the Indian Society, can be said to be the last person, to involve her husband, in the commission of her death, until and unless, he had really done it. The dying declarations, duly corroborated, by the aforesaid medical and circumstantial evidence, clearly pass the test of reliability and acceptability. At least, a wife, in the Indian Society, can be said to be the last person, to involve her husband, in the commission of her death, until and unless, he had really done it. The dying declarations, duly corroborated, by the aforesaid medical and circumstantial evidence, clearly pass the test of reliability and acceptability. The trial Court was, thus right in relying upon the same, to come to the conclusion, that it was the accused, who set his wife ablaze, resulting into burn injuries, leading to her death. The finding of the trial Court, in this regard, being correct, is upheld. The submission of the Counsel for the appellant, being without merit, must fail, and the same is rejected. 14. The Counsel for the appellant, however, placed reliance on Raju V/s. State of Punjab, 2000 (1) RCR (Criminal) 369, a case, decided by Division Bench of this Court, P. Mani V/s. State of Tamil Nadu, 2006(2), RCR (Criminal), 159 : (2006 Cri LJ 1629) (SC) and Nallapati Sivaiah V/s. Sub-Divisional Officer, Guntur, A. P. 2007 (4) RCR (Criminal), 439 : (AIR 2008 SC 19), in support of his contention, that the dying declarations, being not reliable, the trial Court, was wrong, in acting upon the same, to convict the accused and award sentence to him. In Rajus case (supra), there were 98% burn injuries, on the body of the deceased, and the Court held that she was not fit to make statement. The Tehsildar, who recorded the statement, stated that his Reader, recorded the same. The opinion of the doctor, had been obtained by the Tehsildar, on a separate paper, about the fitness of the deceased, and no time, month or occasion were mentioned by the witness, as to when, she was beaten. In P. Manis case (supra), it was held that if the evidence showed that the dying declaration did not reveal the entire truth, it may be considered only, as a piece of evidence, in which event, conviction may not be rested only, on the basis thereof. In that case, it was the husband, who along with others extinguished the fire, and took the victim to hospital. This circumstance was also taken into consideration by the Apex Court, for holding, that the conduct of the husband, being in consonance with the normal human behaviour, he might not have caused the death of his wife. In that case, it was the husband, who along with others extinguished the fire, and took the victim to hospital. This circumstance was also taken into consideration by the Apex Court, for holding, that the conduct of the husband, being in consonance with the normal human behaviour, he might not have caused the death of his wife. In Nallapati Sivaiahs case (supra), the dying declaration, was recorded, by the Judicial Magistrate, without certificate of fitness, by the doctor, though the doctor was available. It was held that it was not safe to record conviction, on the basis thereof. The facts of the aforesaid authorities, are clearly distinguishable, from the facts of the instant case. In the instant case, Balwinder Singh, Sub Inspector, Police Station Sadar, Fazilka, sought the opinion of the doctor PC/1, as to whether, Raj Bala, was fit and conscious to make statement. The doctor tendered opinion PC/1, that she was fit to make statement. Thereafter, he recorded the dying declaration PO of Raj Bala, which was read over and explained to her and she thumb marked it, after admitting it to be correct. Since Raj Bala had already been declared fit to make statement, immediately after PO was recorded, Tejpal Singh Bedi, Executive Magistrate, recorded her dying declaration PK, which was also read over and explained to her and she thumb marked the same, after admitting it to be correct. In this case, there were 80% burns, on the dead body. Since, the doctor recorded certificate, that she was fit, it could not be said that she was not fit. Raj Bala, in clear-cut terms, stated in PO, that she used to be beaten by the accused, at the instance of her mother-in-law. It was a continuous harassment, which was being caused to the deceased, by the accused, by beating her, from time to time. In this view of the matter, no help, can be drawn, by the Counsel for the appellant, from the aforesaid authorities. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 15. The motive was stated by the deceased, in the dying declaration PO, itself. In this view of the matter, no help, can be drawn, by the Counsel for the appellant, from the aforesaid authorities. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 15. The motive was stated by the deceased, in the dying declaration PO, itself. She, in clear cut terms, stated that her husband was asking her to accompany him, to the fields, for work, but she was unable to do so, on account of the reason that she was to look after the minor children and even she was being beaten, by him, from time to time, at the instance of her mother-in-law. Motive, thus, was proved from the dying declaration PO. Even if, it is assumed, for the sake of arguments, that the motive was very slander, that did not mean that the accused did not cause death of the deceased intentionally. There can be an occurrence, without motive also. When the other evidence, produced by the prosecution, is cogent, convincing, reliable and trustworthy, motive pales into insignificance, even if it weak. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 16. Coming to the contention of the Counsel for the appellant, that no offence, punishable under Section 302 of the Indian Penal Code, was made out, it may be stated here, that the same is also without merit and deserves rejection. When the accused, put kerosene oil upon Raj Bala (now deceased), and set her ablaze, he did so, with an intention of causing bodily injury to her, which was sufficient to cause death in the ordinary course of nature, and as such, it could not be said that he did not commit her murder. He, being present, in the house, did not try to extinguish fire, nor did he take Raj Bala, to the hospital, but, on other hand, took up a false plea, that he was not in the house, but had gone to the fields. The subsequent conduct of the accused, also clearly showed, that he had an intention to cause the death of Raj Bala, as a result whereof, he set her ablaze. Ultimately, she succumbed to the burn injuries on 14-5-1995. The subsequent conduct of the accused, also clearly showed, that he had an intention to cause the death of Raj Bala, as a result whereof, he set her ablaze. Ultimately, she succumbed to the burn injuries on 14-5-1995. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 17. The trial Court, in para No. 14, of its judgment was right, in holding that the evidence of the defence witnesses, did not inspire confidence. Puran Chand, DW1, stated in his cross examination, that the children were playing, on the ground, in that room, when they had entered the same, while Bibi Bai, DW2, stated, in her cross-examination, that the children were sleeping in the room. None of them, stated that they had gone to Milap Kumar, accused. It means that Milap Kumar, accused, was already there, and he put kerosene oil on Raj Bala when she was preparing tea, and set her ablaze. The plea taken up, by the accused, in his statement under Section 313 of the Code of Criminal Procedure, that it was an accidental fire, as the stove had fallen over her was not proved from the record. It cannot be imagined that Raj Bala was keeping the stove above the height of her head, as a result whereof, the kerosene oil, spread on her, as a result whereof, she caught fire. In that event, the injuries would have been on the lower part of the body of the deceased and not on the upper portion including hair, scalp, face and neck, as in this case, according to Dr. Davinder Kumar, who qnducted the postmortem examination. The defence of the accused is belied by the dying declarations, as Raj Bala was preparing tea on an earthen hearth by feeding fire with the help of dry cotton sticks, and not on the stove. Had the accused tried to extinguish fire, as stated by him, in his statement under Section 313 of the Code of Criminal Procedure, he would have certainly received some injuries, on his hands, but there was no injury, on any part of his body. There is no document, on record, that it was the accused, who got admitted Raj Bala, in the hospital. There is no document, on record, that it was the accused, who got admitted Raj Bala, in the hospital. The plea taken up by the accused, that it was at the instance of the parents of the deceased, that he was falsely implicated, in the instant case, was rightly found to be not correct, by the trial Court. Had the case been registered, against the accused, at the instance of the parents of the deceased, they would have certainly made exaggerated allegations, against him, regarding the torture of. their daughter, in connection with the demand of dowry, as the death occurred in, this case, within 7 years of marriage. However, no such allegation was made against him. On reappraisal of the defence evidence, this Court, also comes to the conclusion, that the same does not inspire confidence. The findings of the trial Court, in disbelieving and discarding the defence evidence, being correct, are affirmed. 18. No other point was urged by the Counsel for the parties. 19. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, are based, on the correct appreciation of evidence, and law, on the point. The same do not warrant interference, and deserve to be upheld. 20. For the reasons recorded above, the appeal is dismissed. The judgment of conviction, and the order of sentence, are upheld. If the appellant is on bail, his bail bonds, shall stand cancelled. The Chief Judicial Magistrate, Ferozepur, shall take necessary steps, in accordance with the provisions of law, to comply with the judgment,within a period of 2 months, from the date of receipt of a copy of the same, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure.