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Himachal Pradesh High Court · body

2009 DIGILAW 959 (HP)

DALIP ALIAS KHARKU v. STATE OF H. P.

2009-11-04

SURINDER SINGH, SURJIT SINGH

body2009
JUDGMENT Surjit Singh, J.(Oral)-Appellant has challenged the judgment dated 17th January, 2001 of learned Sessions Court, Kinnaur at Rampur Bushahr, whereby he has been convicted of offences, under Sections 302, 436 and 324 IPC and sentenced as follows:- Offence Sentence 302 IPC Life imprisonment and fine of Rs.4,000; in default of payment of fine simple imprisonment for a further period of six months. 436 IPC Simple imprisonment for five years and fine of Rs.1000/-; in default of payment of fine simple imprisonment for two months. 324 IPC Simple imprisonment for one year. 2. Prosecution case, which led to the trial, conviction and sentence of the appellant, as aforesaid, may be noticed. Appellant, who is a Gurkha, was married to deceased Sangita in October, 2003. He used to work somewhere near Shimla. Deceased’s parents live in village Jeori in Rampur Tehsil of Shimla District. About 10-12 days after the marriage, father of the deceased fell ill. Both, the appellant and the deceased, went to Jeori, to enquire after his health. They stayed there for 2-3 days. Thereafter the appellant wanted to return to his place of work, near Shimla, and asked the deceased to accompany him. She told him that she wanted to stay back upto Diwali. This offended the appellant. He returned to Shimla after administering threat to the deceased. On the next following night, i.e. 22nd October, 2003, the appellant allegedly went to Jeori around 2 a.m. and stealthily entered the room, in which the deceased alongwith her mother PW-2 Jai Devi and sister PW-1 Padma Devi was asleep. Deceased and her mother PW-2 Jai Devi were sleeping on one cot and PW-1 Padma Devi with her child, on the other. The appellant was allegedly carrying a torch and a Can, containing kerosene or petrol. He sprinkled kerosene/petrol over deceased Sangita and also inside the room and set Sangita on fire. Thereafter he ran away from the spot. He was seen in the light of the torch, which he was carrying as also the light of the fire. When Sangita, her mother and sister cried for help, PW-3 Biru, a brother of the deceased, and one Mewa Lal, who were asleep in adjoining rooms, came there. They were told that the appellant had sprinkled some inflammable material on Sangita and inside the room and caused fire. They came out to search for the appellant and saw him running away. They were told that the appellant had sprinkled some inflammable material on Sangita and inside the room and caused fire. They came out to search for the appellant and saw him running away. They chased him. Appellant jumped down a Nullah and sustained serious injuries. 3. Sangita, her mother PW-2 Jai Devi and sister PW-1 Padma Devi, who all had sustained burn injuries, were taken to hospital at Jeori, where they were examined by PW-11 Dr. Lal Singh. The doctor found burn injuries on their person of varying degrees. PW-3 Biru, after dropping deceased Sangita, PW-1 Padma Devi and PW-2 Jai Devi in the hospital, went to the police station and lodged report that the appellant had set Sangita and the room, in which she was asleep, on fire. The report was entered in the Rojnamcha, vide entry No.16, copy Ext. PW12/A. Police rushed to the hospital and got all the injured, namely deceased Sangita, PW-1 Padma Devi, PW-2 Jai Devi and Vinod, child of PW-1 Padma Devi, medically examined. 4. PW-18 ASI Keshav Singh moved an application, seeking opinion of PW-11 Dr. Lal Singh, if Sangita was fit to make a statement. That application is Ext. PW11/J. Doctor certified, vide endorsement Ext. PW11/K, that she was fit to make a statement. Thereafter statement of Sangita was recorded, which is Ext. PW18/A, and it was sent to Police Station for formal registration of the case. As per statement Ext. PW18/A, appellant entered the room stealthily, sprinkled kerosene on deceased Sangita and in the room and then set her and the room on fire and ran away. 5. Appellant was arrested by the police from Baroni Khad on the very day of the occurrence, i.e. 22nd October, 2008 around 8 or 9 a.m. He was having burn injuries as also some other serious injuries and was taken to hospital, where he remained admitted upto 7th January, 2005. He was medically examined by PW-17 Dr. R.K. Bhatia. He noticed blisters on his right knee, right thigh, right calf region and certain bruises on the right calf and lumber regions. 6. Sangita was referred to I.G.M.C., Shimla, where she died on 5.11.2003. Her postmortem was conducted by PW-5 Dr. V.K. Mishra, Professor and Head, Department of Forensic Medicine, Shimla. He opined that cause of death was septicemia, resulting from ante-mortem burn injuries. 6. Sangita was referred to I.G.M.C., Shimla, where she died on 5.11.2003. Her postmortem was conducted by PW-5 Dr. V.K. Mishra, Professor and Head, Department of Forensic Medicine, Shimla. He opined that cause of death was septicemia, resulting from ante-mortem burn injuries. Burn injuries noticed by him were the same, as earlier noticed by PW-11 Dr. Lal Singh, who examined deceased Sangita at PHC, Jeori, on the very day of the occurrence. 7. Trial Court charged the appellant with offences, under Sections 436, 324, 302, 307 and 506 IPC. He pleaded not guilty to the charge and was, therefore, put on trial. 8. Prosecution mainly relied upon the testimony of PW-1 Padma Devi, a sister of the deceased, PW-2 Jai Devi, mother of the deceased, PW-3 Biru, a brother of the deceased, the doctor, who conducted medical examination of the deceased, PW-1 Padma Devi and PW-2 Jai Devi, namely PW-11 Dr. Lal Singh, PW-17 Dr. R.K. Bhatia, who conducted medical examination of the appellant and PW-18 ASI Keshav Singh, who arrested the appellant and investigated the case, to bring the charge home to the appellant. 9. Appellant took the plea that he was already at the house of the parents of the deceased on the fateful night. He pleaded that he, PW-3 Biru, one Mewa Lal, one Beer Bahadur and some other Nepalis were gambling in the house (Dera) and that in the course of gambling they happened to quarrel and scuffle with each other and as a result of that scuffle, a tumbler, containing kerosene, which was used as an improvised kerosene lamp, fell and caused fire in the Dera. He stated that since he and other persons, gambling with him, were scuffling, he ran away from the Dera and PW-3 Biru and Mewa Lal chased him and then he jumped into a Khad and sustained injuries, which have permanently immobilized him. 10. We have heard the learned counsel for the appellant and the learned Deputy Advocate General and perused the record. 11. Learned counsel for the appellant submits that even though PW-1 Padma Devi, a sister and PW-2 Jai Devi, the mother of the deceased, have stated that it was the appellant, who set the deceased and the house on fire, yet there are certain contradictions in their testimony, which render their testimony highly doubtful. 11. Learned counsel for the appellant submits that even though PW-1 Padma Devi, a sister and PW-2 Jai Devi, the mother of the deceased, have stated that it was the appellant, who set the deceased and the house on fire, yet there are certain contradictions in their testimony, which render their testimony highly doubtful. He has drawn our attention to the contradictions in the testimony of the two witnesses about the alleged entry of the appellant in the room at the dead of the night. PW-1 Padma Devi stated that she heard a knock at the door, which was latched from inside around 2 in the night and when she opened the door, she found the appellant with a torch in one hand and a Can in the other and that he forcibly entered the room, sprinkled the contents of the Can in the room and on the deceased, who was asleep on a cot alongwith her mother, and then set the deceased on fire. PW-2 Jai Devi, however, stated that there was no latch and the appellant stealthily entered the room. At the same time, in the course of her cross-examination, she stated that the appellant knew as to on which cot the deceased was asleep, because earlier he had taken his meals sitting on that cot. 12. Learned counsel submits that the aforesaid contradictions suggest that the entire version of the prosecution is concocted and the appellant has been implicated only on suspicion. 13. Rule of falsus in uno falsus in omnibus does not have any application in India. Our courts are expected to separate the truth from falsehood, unless it is impossible to do so. The contradictions pointed out by the learned counsel, as noticed hereinabove, become meaningless, once the appellant admits his presence in the room at the time when incident of fire took place. Also he has not challenged the testimony of PW-1 Padma Devi, PW-2 Jai Devi and PW-3 Biru that a day prior to the day of occurrence, he had left their house, threatening the deceased. 14. Also he has not challenged the testimony of PW-1 Padma Devi, PW-2 Jai Devi and PW-3 Biru that a day prior to the day of occurrence, he had left their house, threatening the deceased. 14. Learned counsel for the appellant further submits that when the testimony of PW-1 Padma Devi and PW-2 Jai Devi, with regard to the alleged illegal entry of the appellant, is doubtful, there should be no reason to disbelieve the defence plea that the appellant, PW-3 Biru and some other Gurkhas, including Mewa Lal and Beer Bahadur, were gambling in the room and while so gambling they happened to quarrel and scuffle the improvised kerosene lamp fell and caused fire. This plea cannot be accepted for several apparent reasons. 15. It is only the appellant, PW-1 Padma Devi, PW-2 Jai Devi and deceased Sangita, who sustained burn injuries in the incident. If there were other persons, including Biru, Mewa Lal and Beer Bahadur, they were also supposed to have sustained some burn injuries, but there is no evidence that any one of them sustained any such injuries. PW-3 Biru did not have any injury nor was any suggestion put to him that he too sustained burn injuries due to fire. Moreover, if the fire was caused by fall of lamp, there being so many persons awake, as claimed by the appellant, fire would have been extinguished by them at once and there could not have been any loss of life or property. 16. Further, when the appellant was taken to the hospital, with burn and other serious injuries, which he sustained due to fire and which necessitated his hospitalization for more than a year, he told the doctor, namely PW-17 Dr. R.K. Bhatia, that he sustained the injuries when the police were chasing him. However, in his statement, under Section 313 Cr. P.C., he stated that he sustained the injuries by fall into a Khad, when PW-3 Biru and one Mewa Lal were chasing him. This contradiction, with respect to the circumstance, under which he fell and sustained injuries, gives a lie to his plea. 17. Another submission made by the learned counsel is that the earliest version given to the police by PW-3 Biru, as mentioned by PW-18 ASI Keshav Singh in the request Ext. This contradiction, with respect to the circumstance, under which he fell and sustained injuries, gives a lie to his plea. 17. Another submission made by the learned counsel is that the earliest version given to the police by PW-3 Biru, as mentioned by PW-18 ASI Keshav Singh in the request Ext. PW11/A, which he made to doctor at PHC, Jeori for the medical examination of deceased Sangita, is that PW-3 Biru reported that a fire had broken out all of a sudden at 2.50 a.m. in the Dera. It is true that in Ext. PW11/A and also the application Ext. PW11/B made by him to the doctor, PW- ASI Keshav Singh stated that PW-3 Biru reported that a fire had broken out suddenly, but the report, which PW-3 Biru lodged at the Police Station and which was entered in the Rojnamcha, vide Entry No. 16, copy Ext. PW12/A, is different. As per this report, PW-3 Biru specifically stated that the appellant had set his (Biru’s) sisters Sangita and Padma Devi, mother Jai Devi and a nephew Vinod, on fire by sprinkling kerosene. 18. PW-18 ASI Keshav Singh very specifically stated that PW-3 Biru came to Police Post, Jeori at 3.00 a.m. and lodged the report, copy Ext. PW12/A. This part of his testimony was not challenged in the cross-examination, on behalf of the appellant. PW-3 Biru also stated in the cross-examination that he reported the matter to the police by visiting the Police Post. His statement to this effect was also not subjected to cross-examination. 19. Sangita (deceased) also made statement Ext. PW18/A, soon after the occurrence and it is on the basis of this statement that the case was formally registered, vide FIR Ext. PW13/A. As per this statement, the appellant sprinkled kerosene on the deceased and set her on fire and in that incident of fire not only she, but her sister Padma, mother Jai Devi and nephew Vinod, who were also sleeping in that very room, sustained burn injuries. Statement Ext. PW18/A was recorded at 3.40 a.m. on 22nd October, 2003 itself, after PW-11 Dr. Lal Singh certified, vide endorsement Ext. PW11/K, that deceased Sangita was fit to make a statement. She was having 60% burn injuries. There is no reason to disbelieve the version given by deceased Sangita to the police, vide statement Ext. Statement Ext. PW18/A was recorded at 3.40 a.m. on 22nd October, 2003 itself, after PW-11 Dr. Lal Singh certified, vide endorsement Ext. PW11/K, that deceased Sangita was fit to make a statement. She was having 60% burn injuries. There is no reason to disbelieve the version given by deceased Sangita to the police, vide statement Ext. PW18/, which is relevant as a dying declaration, especially when it is corroborated by the testimony of PW-1 Padma Devi, PW-2 Jai Devi and to some extent by the statement of PW-3 Biru. Appellant also does not deny his presence at the scene of the occurrence, when the fire broke out. His plea that the fire was accidental is not believable, as already noticed hereinabove. 20. In view of the above stated position, we see no merit in the present appeal. The same is, therefore, dismissed.