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2010 DIGILAW 2193 (PNJ)

Mukesh Kumar v. State of Punjab

2010-08-02

ASHUTOSH MOHUNTA, NAWAB SINGH

body2010
JUDGMENT Ashutosh Mohunta, J.:- The appellant-Mukesh Kumar has impugned the judgment of conviction and the order of sentence dated 8.8.2001 passed by the Addl. Sessions Judge, Sangrur, whereby he has been convicted under Section 302 IPC and has been sentenced to undergo imprisonment for life. 2. The appellant-Mukesh Kumar was prosecuted for having committed the murder of his wife Sudesh Rani daughter of Ved Parkash by sprinkling kerosene oil on her and setting her on fire. 3. The prosecution case in brief is that Sudesh Rani daughter of Ved Parkash was married to Mukesh Kumar about 1-1/2 years before the incident. Mukesh Kumar used to remark that Sudesh Rani was of dark complexion and was ugly looking. He often turned her out of his house by giving her beatings. Then she used to go to her parents, who would bring her back to her matrimonial home. Similarly on 6.2.2000, Sudesh Rani was left at the house of her husband by her mother Bimla Devi and the maternal grand-mother Barmali at about 10/11 A.M. Her husband thereafter gave her beatings and at about 1 P.M. he poured kerosene oil on her person from a plastic Can and set her on fire with a match-stick. She became unconscious and was taken to Community Health Centre, Ahmedgarh, where Dr. Karnail Singh (PW1), Medical Officer, examined her and found that condition of Sudesh Rani was serious as she was having about 80% burns. She was provided first aid. Dr. Karnail Singh sent the information Ex.PA to the police. ASI Mohinder Singh of Police Station, City Ahmedgarh, was on patrolling duty on 6.2.2000 near the Civil Hospital, Ahmedgarh, when he was handed over the message Ex.PA at 3:00 P.M. from the Medical Officer, Primary Health Centre, Ahmedgarh, that Sudesh Rani wife of Mukesh Kumar was admitted in the hospital with 80% burn injuries. ASI Harbans Singh immediately reached the Civil Hospital, Ahmedgarh, and filed application Ex.PA/1 before the SMO, Civil Hospital, Ahmedgarh, who made the endorsement at 3:15 P.M. that the patient was unfit to make the statement. Thereafter, Sudesh Rani was transferred to Civil Hospital, Malerkotla and further referred to Rajindra Hospital, Patiala, where ASI Mohinder Singh, after obtaining the opinion of the doctor on the application Ex. PB on 7.2.2000 regarding fitness of Sudesh Rani to make statement, recorded her statement (Ex. PC). 4. After recording the statement, Dr. Thereafter, Sudesh Rani was transferred to Civil Hospital, Malerkotla and further referred to Rajindra Hospital, Patiala, where ASI Mohinder Singh, after obtaining the opinion of the doctor on the application Ex. PB on 7.2.2000 regarding fitness of Sudesh Rani to make statement, recorded her statement (Ex. PC). 4. After recording the statement, Dr. Rajiv Singla recorded that Sudesh Rani wife of Mukesh remained fully conscious during the period her statement was being recorded. Sudesh Rani thumb marked the statement in token of its correctness and the same was attested by ASI Mohinder Singh, Police Station City Ahmedgarh. 5. On 9.2.2000 at 10:30 A.M. Sudesh Rani succumbed to her burn injuries at Rajindra Hospital, Patiala. ASI Bahadur Singh, Police Station City Ahmedgarh, prepared the inquest report (Ex.PJ) and handed over the application (Ex.PK) to HC Manjit Singh along with dead body for post-mortem examination. Dr. Harish Tuli (PW-12), Prof. Deptt. of Forensic Medicines, Government Medical College, Patiala, conducted the postmortem examination on the dead body of Sudesh Rani and found the burns present all over the body except the lower part of both the lower legs including soles of feet. The doctor also noticed that it was a case of 93% burns. It is opined by the doctor that the cause of death was due to burns which were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. The copy of the post-mortem report is Ex.PR. The investigation was then taken over by SI Amarjit Singh, Incharge, P.S. City Ahmedgarh. On completion of the investigation, challan against the accused was presented before the Ilaqa Magistrate. 6. After completing the necessary codal formalities the Judicial Magistrate Ist Class, Malerkotla, committed the case for trial to the Court of Sessions vide order dated 20.5.2000. The accused was charge-sheeted for commission of offence punishable under Sections 302 and 304-B IPC. The accused pleaded not guilty to the charges and claimed trial. 7. In order to prove its case, the prosecution examined Dr. Karnail Singh (PW1), Dr. Rajiv Singla (PW2), Bimla Devi (PW3), Ved Parkash (PW4), Promila Devi (PW5), Ashok Kumar (PW6), SI Amarjit Singh (PW7), ASI Bahadur Singh (PW8), ASI Tejinder Singh (PW9), Santokh Singh (PW10), ASI Mohinder Singh (PW11), Dr. Harish Tuli (PW12). PWs SI Harpreet Singh, ASI Narain Singh and HC Manjit Singh were given up being unnecessary and the evidence was closed. 8. Rajiv Singla (PW2), Bimla Devi (PW3), Ved Parkash (PW4), Promila Devi (PW5), Ashok Kumar (PW6), SI Amarjit Singh (PW7), ASI Bahadur Singh (PW8), ASI Tejinder Singh (PW9), Santokh Singh (PW10), ASI Mohinder Singh (PW11), Dr. Harish Tuli (PW12). PWs SI Harpreet Singh, ASI Narain Singh and HC Manjit Singh were given up being unnecessary and the evidence was closed. 8. After closure of the case of the prosecution statement of the accused was recorded under Section 313 Cr.P.C. The accused denied all the allegations of the prosecution and stated that there was no dispute with his wife and they were living a happy married life. He further stated that it was a case of accidental fire. The accused also examined Gian Inder Singh (DW1) and Surinder Kumar (DW2) residents of his locality and thereafter closed his defence. 9. The trial Court found the statement (Ex.PC) made by Sudesh Rani, deceased, before ASI Mohinder Singh (PW11) to be trustworthy. The aforesaid statement was recorded by ASI Mohinder Singh in the presence of Dr. Rajiv Singla who testified that the patient had remained fully conscious during the period her statement was being recorded. The trial Court also placed reliance on the recovery of the plastic Can made in pursuance to the disclosure statement suffered by the accused and, thus, convicted the accused under Section 302 IPC and sentenced him to undergo imprisonment for life. 10. Mr. S.S.Salar, counsel for the appellant, has submitted that Sudesh Rani died as a result of bursting of the stove. She had received extensive burns of more than 90% and, therefore, in such a situation the deceased could not have been in a fit condition to make a statement and, hence, the dying declaration made by Sudesh Rani is not trustworthy. 11. It has further been contended that the occurrence is alleged to have taken place on 6.2.2000 whereas Sudesh Rani expired on 9.2.2000 i.e. after three days. Learned counsel submits that there was ample time for the prosecution to call a Magistrate and record the statement of the deceased. It is contended that the statement recorded by ASI Mohinder Singh (PW11) cannot be relied upon. 12. It has lastly been argued that Bimla Devi (PW3) and Ved Parkash (PW4), who were the parents of the deceased, have been declared hostile. It is contended that the statement recorded by ASI Mohinder Singh (PW11) cannot be relied upon. 12. It has lastly been argued that Bimla Devi (PW3) and Ved Parkash (PW4), who were the parents of the deceased, have been declared hostile. These witnesses have categorically stated that their daughter was not killed by the accused and that Sudesh Rani had died as a result of bursting of the stove. Learned counsel has further submitted that PW5 Promila Devi, grand-mother of the deceased, has also been declared hostile and further that Ashok Kumar, who was the witness to the recovery of the plastic Can, has also resiled from his statement. It is, thus, contended that as all the witnesses have become hostile and have not supported the case of the prosecution, therefore, the accused is entitled to be acquitted. Counsel for the appellant has also placed reliance on the statement made by DW1 Gian Inder Singh and DW2 Surinder Kumar who have stated that the accused never sprinkled kerosene oil on the deceased. They have stated that the deceased died due to bursting of the stove. 13. The arguments raised by the counsel for the appellant have been strongly controverted by the counsel for the State. The learned State counsel has submitted that the statement of Sudesh Rani was recorded by ASI Mohinder Singh (PW11) after seeking opinion from Dr. Rajiv Singla as to whether the patient is fit to make the statement or not. The statement was recorded in the presence of Dr. Rajiv Singla (PW2) who has stated that the statement was made voluntarily and the same was thumb marked by the deceased in token of its correctness. 14. Learned State counsel has further submitted that the recovery of the plastic Can from under the heap of brick-bats was made in pursuance to the disclosure statement made by the accused and in the presence of not only the police officials but also before the independent witness Ashok Kumar. Learned State counsel has lastly submitted that even if the parents and some of the other prosecution witnesses have been declared hostile, the statement made by the deceased Sudesh Rani cannot be brushed aside because the statement was made before ASI Mohinder Singh (PW11) and was duly attested by Dr. Rajiv Singla (PW2), who was attending to her. Learned State counsel has lastly submitted that even if the parents and some of the other prosecution witnesses have been declared hostile, the statement made by the deceased Sudesh Rani cannot be brushed aside because the statement was made before ASI Mohinder Singh (PW11) and was duly attested by Dr. Rajiv Singla (PW2), who was attending to her. Learned counsel submits that none of the prosecution witnesses who have resiled from their statements were eye-witnesses to the occurrence and, hence, it is immaterial whether they have supported the case of the prosecution or not. 15. We have heard the counsel for the parties at length and have perused the entire case file. 16. A perusal of the facts shows that on 6.2.2000 at about 10/11 A.M. Sudesh Rani was left at her matrimonial home by her mother Bimla Devi (PW3) and her maternal grand-mother Barmali. Thereafter, they left for their home. The husband of the deceased Mukesh Kumar was present at the house. He always taunted Sudesh Rani that she was dark complexioned and was not beautiful. After Bimla Devi and Barmali had left their house, Mukesh Kumar gave severe beatings to Sudesh Rani and at about 1 P.M. poured kerosene oil on her and set her on fire. Sudesh Rani became unconscious and was shifted to Community Health Centre at Ahmedgarh. A message was sent to ASI Mohinder Singh who was on routine patrol duty and was present near the Civil Hospital, Ahmedgarh. He reached the Civil Hospital and sought the opinion of the doctor as to whether the patient was fit to make a statement or not. Sudesh Rani was declared unfit. Thereafter, the injured was shifted to the Civil Hospital, Malerkola and from there she was referred to Rajindra Hospital, Patiala. On 7.2.2000, ASI Mohinder Singh proceeded to Rajindra Hospital, Patiala, to record the statement of the injured and sought the opinion of the doctor with regard to the fitness of Sudesh Rani to make a statement. Dr. Rajiv Singla (PW2) certified that the injured was fit to make a statement. Thereafter, ASI Mohinder Singh recorded the statement of Sudesh Rani in the presence of Dr. Rajiv Singla. After recording the statement (Ex. PC) of Sudesh Rani the same was read out to her who put her right thumb impression in token of its correctness. The statement was certified by Dr. Thereafter, ASI Mohinder Singh recorded the statement of Sudesh Rani in the presence of Dr. Rajiv Singla. After recording the statement (Ex. PC) of Sudesh Rani the same was read out to her who put her right thumb impression in token of its correctness. The statement was certified by Dr. Rajiv Singla that the same has been recorded in his presence and further that the patient was fully conscious while making the statement. On the basis of the aforementioned statement, formal FIR (Ex.PC/3) was recorded. 17. The accused was produced by Ashok Kumar before SI Amarjit Singh on 19.2.2000 i.e. after 13 days of the occurrence. During interrogation, the accused disclosed that he had kept concealed the plastic Can and the match-box under the heap of brick-bats in the back-yard of his house. In pursuance to his disclosure statement, the accused led the police party to the disclosed place and got recovered the plastic Can and the matchbox by removing the brick-bats and the same were taken into possession after making the same into sealed parcel. 18. Sudesh Rani in her statement has categorically stated that her husband used to beat her often and she had on numerous occasions used to go back to her parental home but she used to be brought back by her mother. The accused also used to taunt her that she was not good looking and was dark complexioned. She has further stated that on 6.2.2000 after she was left at the matrimonial home by her mother and grand-mother, the accused gave her severe beatings and at about 1 P.M. sprinkled kerosene oil on her and set her on fire as a result of which she became unconscious and was removed to the hospital. 19. The aforementioned statement has also been corroborated by ASI Mohinder Singh (PW11) who has stated that before recording her statement he sought the opinion of the doctor about the fitness of the injured. This witness has further stated that the patient made the statement voluntarily and the same was read out to her and thereafter Sudesh Rani put her thumb impression on the statement. The testimony of ASI Mohinder Singh also finds support from Dr. Rajiv Singla (PW2) who has stated that the patient remained fully conscious during the period her statement was being recorded. 20. The testimony of ASI Mohinder Singh also finds support from Dr. Rajiv Singla (PW2) who has stated that the patient remained fully conscious during the period her statement was being recorded. 20. Thus, from the aforementioned facts it is clear that it was the accused Mukesh Kumar who had murdered Sudesh Rani by sprinkling kerosene oil on her and set her on fire. 21. The dying declaration (Ex.PC) was a voluntary disclosure by the deceased while she was in a fit mental state. The aforesaid statement (Ex.PC) is fully reliable and trustworthy and clearly points to the guilt of the accused. 22. The recovery of the plastic Can and the match-box from under the heap of brick-bats lying in the back-yard of the house of the accused also supports the version given by Sudesh Rani. The recovery was made on the disclosure statement made by the accused who pointed out the place where he had hidden the plastic Can in the presence of the police officials as well as the independent witness Ashok Kumar. 23. Apart from the above, the FSL Report also shows that kerosene oil was detected on the clothes of the deceased which also supports the case of the prosecution. Even as per the deposition of Dr. Harish Tuli (PW12), Professor Department of Forensic Medicines, Government Medical College, Patiala, Sudesh Rani had 93% burns. There is nothing on record to suggest that the patient was unable to make a statement while she was struggling for her life in the hospital. The doctor has stated that the patient was given pain killers and other medications and, thus, it cannot be said that the deceased could not have made the statement as recorded by ASI Mohinder Singh in the presence of Dr. Rajiv Singla. 24. Another important aspect which points a finger towards the accused is that the occurrence is alleged to have taken place on 6.2.2000 and thereafter Mukesh Kumar absconded. He was arrested on 19.2.2000 i.e. 13 days later when he was produced by Ashok Kumar before the police. This fact has also been admitted by Ashok Kumar in his examination-in-chief. The running away of the accused after the occurrence and the fact that he remained absconding for 13 days has not been explained by the defence. This also shows that it was the accused Mukesh Kumar who had committed the murder of his wife Sudesh Rani. This fact has also been admitted by Ashok Kumar in his examination-in-chief. The running away of the accused after the occurrence and the fact that he remained absconding for 13 days has not been explained by the defence. This also shows that it was the accused Mukesh Kumar who had committed the murder of his wife Sudesh Rani. 25. The argument of the counsel for the appellant that Sudesh Rani had died due to burn injuries because the stove had burst cannot be accepted as there is no evidence on record to show the bursting of the stove. Even in the inquest report there is no mention with regard to the fact that the stove had burst. Thus, this contention on behalf of the appellant cannot be accepted. 26. The contention of the learned counsel for the appellant that as most of the prosecution witnesses were resiled from their statements and have been declared hostile also cannot be sustained because Sudesh Rani in her dying declaration has categorically stated that it was her husband Mukesh Kumar who had sprinkled kerosene oil on her and had set her on fire. The dying declaration has been corroborated by ASI Mohinder Singh and Dr. Rajiv Singla. 27. As a result of the aforementioned discussion, it is clear that it was Mukesh Kumar who had committed the murder of his wife. He has rightly been convicted under Section 302 IPC and sentenced to undergo imprisonment for life by the trial Court. We find no merit in the appeal and the same is dismissed. In case the appellant is on bail, then his bail bonds are cancelled and he be taken into custody forthwith to serve out the remaining portion of his sentence. ------------