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2011 DIGILAW 39 (PNJ)

Harmohan Singh v. State of Haryana

2011-01-05

M.JEYAPAUL

body2011
JUDGMENT M. JEYAPAUL, J. (ORAL). 1. The appellant who was arrayed as the first accused was alone convicted for the offences punishable under Sections 306 and 498-A of the Indian Penal Code. The appellant's mother Kulwant Kaur, who was arrayed as the second accused was acquitted by the trial Court. 2. The case of the prosecution in brief as could be ascertained from the evidence let in by the prosecution is as follows : a) The appellant Harmohan Singh married the victim lady Satwant Kaur on 21.05.1988. They were blessed with two children. The accused/appellant used to be very idle in the house. He was addicted to excessive drinking. He used to beat his wife and harass her. For about four days prior to the occurrence which unfolded on 21.05.1995, the appellant had been sitting at his house without doing any job. The appellant also suspected the fidelity of his wife. When Satwant Kaur expressed her intention to die under such circumstances, the appellant asked her to die. When Satwant Kaur sprinkled kerosene oil on her to create a fear in the mind of the appellant, the appellant instigated her and asked her to go ahead by setting fire on her. On such instigation, Satwant Kaur struck a match stick and set her on fire. The second accused alongwith others took Satwant Kaur to the hospital for treatment. b) Dr. S.P. Chugh (PW10) medico legally examined Satwant Kaur on 21.05.1995 at 03:00 PM. There were superficial to deep burns found all over her body. There was also peeling of skin at some places and erythema at other places. The medico legal report given by PW10 was marked as Ex.PG/1. c) The learned Judicial Magistrate Mr. S.K. Aggarwal (PW8) recorded the dying declaration of Satwant Kaur after verifying her conscious and fit state of mind to give statement from the duty doctor (PW10). d) Satwant Kaur stated before the learned Judicial Magistrate (PW8) that her husband had been harassing her after taking liquor. He had been indulging in loose talk,despite the fact that they were blessed with two issues. The appellant used to ask her as to why she did not die, inspite of her threat that she would die. The appellant also levelled false allegation that Satwant Kaur was having paramour. He had been indulging in loose talk,despite the fact that they were blessed with two issues. The appellant used to ask her as to why she did not die, inspite of her threat that she would die. The appellant also levelled false allegation that Satwant Kaur was having paramour. Satwant Kaur asked the appellant whether she should die, the appellant replied that she must die and he would bring up the children. To put the appellant in fear, she sprinkled kerosene oil on her. The appellant asked her that why she had not set fire to her, even though she had sprinkled kerosene oil on her. Thereafter, she brought a match box from the kitchen, struck the stick and set herself on fire. e) Based on the dying declaration (Ex.PE/2), a formal First Information report was registered by the Sub Inspector of Police Jaipal Singh (PW9). Dr. R.K. Pruthi (PW1) medico legally examined the appellant herein on 24.05.1995. He found superficial to deep burns on the left hand, left forearm, left arm, left shoulder and parts of finger of right hand. The skin was peeled off at the most of the places and it was red at some places. He has opined that these burn injuries could have been caused when the appellant was making an attempt to extinguish the fire. f) Dr. Anil Kumar (PW2) conducted post mortem examination on the dead body of Satwant Kaur on 24.05.1995 at 10:40 AM. He found dermo epidermal burns all over her body. The skin was found peeled off at most of the places. Smell of of kerosene emitted from the scalp hair. The total area of burns was found to be 100%. He opined in the post mortem report Ex.PB that Satwant Kaur had died of foxaemia and shock consequent upon burn injuries which were ante mortem in nature. PW13 arrested the accused and remanded them to judicial custody. He having completed the investigation filed final report as against the accused under Sections 498-A and 306 of the Indian Penal Code. g) As many as 13 witnesses were examined on the side of the prosecution. PW6 and PW7 turned hostile to the version of the prosecution. PW13 arrested the accused and remanded them to judicial custody. He having completed the investigation filed final report as against the accused under Sections 498-A and 306 of the Indian Penal Code. g) As many as 13 witnesses were examined on the side of the prosecution. PW6 and PW7 turned hostile to the version of the prosecution. h) The appellant herein during the course of examination under Section 313 Cr.P.C. stated that Satwant Kaur who was highly qualified and was working as a teacher could not adjust with him who has passed only intermediate. He also set up a plea of alibi. He tried to extinguish the fire after reaching house from the market, hearing the cries emanated from his house. 3. The learned trial Judge having relied upon the dying declaration given by the deceased Satwant Kaur in the background of the medical evidence and the corroboration lent by her brother PW12 returned a finding that the appellant committed the offences punishable under Sections 498-A and 306 of the Indian Penal Code. 4. The learned senior counsel Shri A.P.S. Deol, appearing for the first accused/appellant would submit that the occurrence had taken place immediately after the expiry of seven years of marriage. The trial Court failed to take note of the fact that the appellant also sustained injuries. It is his submission that if the appellant had instigated his wife to commit suicide, he would not have made any attempt to save her life by extinguishing the fire engulfed on her. Even if the dying declaration as such was taking into consideration, no offence was made out either under Section 306 or under Section 498-A of the Indian Penal Code. It is his last submission that the appellant has faced the trial for fifteen long years. He has to take care of his children left behind by the deceased. Therefore, some leniency may be shown by this Court in the matter of sentence, if at all, this Court comes to a conclusion that the appellant has committed the offence under Sections 306 and 498-A of Indian Penal Code. 5. Per contra, the learned Deputy Advocate General appearing for the State would submit that the dying declaration would disclose that there was not only harassment but also instigation on the part of the appellant to commit suicide. 5. Per contra, the learned Deputy Advocate General appearing for the State would submit that the dying declaration would disclose that there was not only harassment but also instigation on the part of the appellant to commit suicide. It is his further submission that PW12 has also spoken to the harassment meted out to Satwant Kaur. The medical evidence also supports the case of the prosecution. No leniency in the matter of sentence could be shown to the appellant/accused who had instigated his wife to commit suicide, he would further submit. 6. Dr. S.P. Chugh (PW10) who had admitted Satwant Kaur for treatment has spoken to the burn injuries sustained by the deceased at the time when she was admitted to the hospital. The post mortem report submitted by Dr. Anil Kumar (PW2) would go to establish that the death of Satwant Kaur had taken place due to burn injuries sustained by her. 7. The learned Judicial Magistrate Mr. S.K. Aggarwal (PW8) having thoroughly verified the conscious and fit state of mind of Satwant Kaur through the duty doctor (PW10) Dr. S.P. Chugh has recorded the dying declaration of Satwant Kaur. 8. The deceased Satwant Kaur has categorically stated in the dying declaration that the accused used to harass her after taking liquor. He had also levelled false allegation that she was keeping a paramour. She had infact threatened that she would end her life. The response of the appellant was that she deserved to die. In order to instill fear in the mind of the appellant, Satwant Kaur had sprinkled kerosene oil on her, but the appellant had taunted her that she had not set fire to her, inspite of the fact that she had poured kerosene oil on her. Thereupon, it appears that the victim lady had set fire on her. 9. I am unable to subscribe the submission made by the learned senior counsel appearing for the appellant that the dying declaration per se did not constitute any offence. Firstly, the harassment has been clearly spoken to by the victim. The appellant/accused having fully drunk had harassed her. In addition to that the appellant had levelled false allegation that Satwant Kaur was keeping a paramour. Such an allegation would definitely amount to cruelty. Firstly, the harassment has been clearly spoken to by the victim. The appellant/accused having fully drunk had harassed her. In addition to that the appellant had levelled false allegation that Satwant Kaur was keeping a paramour. Such an allegation would definitely amount to cruelty. The accused/appellant had taunted her saying that Satwant Kaur had not chosen to end her life, inspite of the empty threat she wielded for quite some time. When Satwant Kaur stood before the appellant dousing herself with kerosene oil, he had taunted her saying that she had not set fire to herself inspite of sprinkling of kerosene oil on her. The aforesaid dying declaration emanated from the mouth of the victim would go to establish that there was not only harassment and cruelty committed by the accused/appellant, but there was an abetment to commit suicide. There is no reason to reject the dying declaration given by the deceased before her death. The cruelty committed by the accused has also been spoken to by PW12 who is none other than the brother of the deceased. Therefore, dying declaration with respect to the cruelty committed by the appellant was corroborated by PW12. To establish the offence under Section 498-A and offence under Section 306 IPC, the prosecution need not establish that the occurrence took place within seven years of the marriage. The marriage was solemnised between Satwant Kaur and the appellant on 21.05.1988. Exactly on 21.05.1995, which is found to be a co incidence, the occurrence had taken place. 10. It is true that the evidence of Dr. R.K. Pruthi (PW1) would establish that the accused/appellant also sustained burn injuries in his hand. It may at best show that the accused/appellant made an attempt to save the life of the deceased. Any subsequent attempt out of remorse would not wipe out the offence already committed by the accused. Having committed cruelty and also having abetted the deceased to commit suicide, the appellant/accused may have repented in a fraction of second and in his wisdom he might have attempted to douse the fire. Such a subsequent act of the accused/appellant would not save him from the charges under Sections 498-A and 306 of the Indian Penal Code. 11. Having committed cruelty and also having abetted the deceased to commit suicide, the appellant/accused may have repented in a fraction of second and in his wisdom he might have attempted to douse the fire. Such a subsequent act of the accused/appellant would not save him from the charges under Sections 498-A and 306 of the Indian Penal Code. 11. The learned senior counsel cited a decision of the Hon'ble Supreme Court in Hans Raj Versus Stae of Haryana, 2004 (2) RCR (Criminal) 58, wherein it has observed that mere fact that suicide was committed by a married woman within seven years of marriage due to cruelty by her husband would not automatically rise to a presumption that the suicide was abetted by her husband. The cruelty should be of such a nature that it was likely to drive the woman to commit suicide. In the aforesaid case it appears that the prosecution was guilty of improving its case from stage to stage. The material allegations levelled during the course of trial did not find a place in the statements recorded by the police during the course of investigation. Under such circumstances, the Hon'ble Supreme Court held that no offence under Section 306 Indian Penal Code was made out, but of course, the offence under Section 498-A of the Indian Penal Code was made out. The aforesaid decision would not come to the rescue of the accused/appellant for the simple reason that Satwant Kaur committed suicide only on account of the instigation emanated to commit suicide. 12. The Hon'ble Supreme Court in Ramesh Kumar Versus State of Chhattisgarh, 2001 (4) RCR (Criminal) 537, has observed that the ill treatment meted out to the victim by the husband and turning her out of the house and even beating on one occasion at odd hours of night may amount to cruelty punishable under Section 498-A of the Indian Penal Code, but would not constitute an offence punishable under Section 306 of the Indian Penal Code. It has also been made clear in the aforesaid judgment that where an accused was held to be punished under Section 498-A of the Indian Penal Code, it does not follow that he must also be held guilty of having abetted the commission of suicide on the same set of evidence. It has also been made clear in the aforesaid judgment that where an accused was held to be punished under Section 498-A of the Indian Penal Code, it does not follow that he must also be held guilty of having abetted the commission of suicide on the same set of evidence. In the aforesaid case, it appears that dying declaration does not provide any clue that the accused abetted the suicide committed by his wife. Therefore, the Hon'ble Supreme Court held that no case under Section 306 of the Indian Penal Code on the special facts and circumstances of the case was made out by the prosecution, but in the instant case as already pointed out by me not only the cruelty committed by the accused/appellant but also the instigation provided by the accused/appellant to commit suicide has been clearly spoken to by the victim in the dying declaration. Therefore, the facts and circumstances of the aforesaid case are well distinguishable. 13. It is found that the appellant has faced the ordeal of trial for fifteen long years, both the children bound to him and the deceased are being brought up by the accused/appellant. There is evidence to show that he made efforts of course after wisdom dawned on him to save the life of his wife. These aspects are found to be mitigating circumstances to reduce the sentence. 14. The trial Court has rightly returned a verdict of conviction as against the accused under Sections 498-A and 306 of the Indian Penal Code. The accused/appellant could convince this Court with the above mitigating circumstances that he is entitled to some leniency in the matter of sentence for the offence under Section 306 of the Indian Penal Code. 15. In view of the above facts and circumstances, the conviction recorded by the trial court as against the accused under Sections 498-A and 306 of the Indian Penal Code and the sentence imposed by the trial Court for the offence under Section 498-A of the Indian Penal Code and the fine imposed for both the offences are sustained. But the sentence imposed on the first accused/appellant for the offence under Section 306 of the Indian Penal Code is reduced to three years rigorous imprisonment. With the modification in the matter of sentence for the offence under Section 306 of the Indian Penal Code, the appeal stands dismissed. Appeal dismissed.