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2012 DIGILAW 418 (HP)

State Of Himachal Pradesh v. Ashwani Kumar

2012-08-06

DEEPAK GUPTA, RAJIV SHARMA

body2012
JUDGMENT : Deepak Gupta, J. This appeal by the State is directed against the judgement dated 6.2.2004 passed by the learned Sessions Judge, Una in Sessions case No. 6 of 2003 whereby he acquitted the accused of having treated his wife with cruelty and thereafter murdering her by burning. The admitted facts are that deceased Darshna Devi was married to accused Ashwani Kumar. This was Darshna Devi's second marriage. She had two children from her previous marriage and two daughters were born out of the wedlock with Ashwani Kumar. The accused was working as a Halwai in a shop at Jallandhar and had come home. 2. The case of the prosecution is that Darshna Devi always used to complain that the accused after getting drunk used to maltreat and beat her. On 14.1.2003 at about 7.00 p.m the accused poured kerosene oil on Darshna Devi and set her body on fire. Darshna Devi raised an alarm and in the meantime her daughter Puja (PW-2) woke up and Smt. Sehti Bibi (PW-6) who was passing by came to the house of the accused and tried to rescue Darshna Devi. Thereafter, some labourers came to the spot. According to the prosecution Darshna Devi told Sehti Bibi that her husband (the accused) had celebrated the festival of Diwali by setting her body on fire. After the incident Darshna Devi was taken in a burnt condition by the accused in a jeep belonging to PW-9 Mukesh Kumar to the Zonal Hospital where she was admitted and treated by Dr. Sunil Sharma (PW-10). Darshna Devi had sustained serious burns. As per the Dr. Sunil Sharma (PW-10) Darshna Devi told him that the incident had occurred by accident. The doctor informed the police telephonically regarding the incident. Thereafter, Darshna Devi was treated by Dr. Poojan Jaswal (PW-11) from 15.1.2003 to 17.1.2003 but her condition remained the same. PW-12 Dr. Indu Bhardwaj treated and looked after Darshna Devi from 18.1.2003 to 23.1.2003. She was also treated by PW-17 Dr. S.K. Bansal on 25.1.2003 and by PW-13 Dr. Pushpa Raizada on 26.1.2003 but ultimately Darshna Devi succumbed to her burn injuries on 26.1.2003 at 3.05 p.m. Post mortem on the body of Darshna Devi was conducted by Dr. Praveen Bhardwaj (PW-14), who opined that the deceased had died on account of burn injuries received by her. 3. S.K. Bansal on 25.1.2003 and by PW-13 Dr. Pushpa Raizada on 26.1.2003 but ultimately Darshna Devi succumbed to her burn injuries on 26.1.2003 at 3.05 p.m. Post mortem on the body of Darshna Devi was conducted by Dr. Praveen Bhardwaj (PW-14), who opined that the deceased had died on account of burn injuries received by her. 3. It is only after the death of Darshna Devi that a wireless message was received from the police control room Una regarding her death on the basis of which rapat Ext.PK was recorded. S.I. Ranjit Singh visited the hospital and recorded the statement of Ram Pal (PW-1) brother of Darshna Devi Ext.PA, on the basis of which F.I.R. Ext.PL was registered against the accused. In this statement Ram Pal stated that the accused used to beat Darshna Devi after getting drunk and she used to complain about this fact to him and other family members. On 15.1.2003 PW-1 received a message at Ludhiana that his sister had been burnt by the accused. He alongwith his wife immediately came to Una to inquire about his sister and he was told by Darshna Devi that she had been set on fire by the accused, who had poured kerosene oil on her and then lit a match stick to set her on fire. After this report the further investigation was carried out and on completion of investigation challan was filed and finally the accused was charged with having committed the offences aforesaid. He pleaded not guilty and claimed trial. During the course of trial as many as 18 witnesses were examined. The learned trial Court acquitted the accused and hence this appeal by the State. 4. At the outset, we may notice a very disturbing feature about this case. The case of the prosecution is that when Darshna Devi was brought to the hospital she was immediately treated by PW-10 Dr. Sunil Sharma. He examined her on the night intervening 14/15.1.2003. He has specifically stated in his examination-in-chief that at the time of the admission of Darshna Devi the police was telephonically informed. This means that the police was informed about the incident as soon as Darshna Devi reached the hospital. Darshna Devi stayed in hospital from 15.1.2003 till her death on 26.1.2003. No F.I.R. was registered. He has specifically stated in his examination-in-chief that at the time of the admission of Darshna Devi the police was telephonically informed. This means that the police was informed about the incident as soon as Darshna Devi reached the hospital. Darshna Devi stayed in hospital from 15.1.2003 till her death on 26.1.2003. No F.I.R. was registered. No inquiry was done nor any steps were taken to find out whether Darshna Devi was in a fit state to make a statement to the police or to the Magistrate. This is an extremely serious lapse on the part of the police. In fact, there is evidence on record to show that there is a police post in the hospital itself. We fail to understand why the police officials did not swing into action at once. Why did the concerned police officials despite being informed by the doctor not take any action? In the absence of any such immediate action, virtually for 11 days, the guilty party has got a great advantage. In the MLC Ext.PD it is specifically stated that the police has been informed telephonically. The matter does not end here. The accused was also suffering from burn injuries and he was also admitted in the same hospital at the same date and time and his MLC is Ext.PF. In this MLC it is also clearly mentioned that the police had been informed by phone. The question which needs to be answered is why the police did not take any action. We are in fact of the considered opinion that the learned Sessions Judge should have been well advised to have referred this matter for further inquiry in this behalf. 5. Be that as it may, we are of the considered view that an inquiry should be conducted and responsibility should be fixed on the erring police officials who failed to perform their duties in accordance with law. 6. Coming to the merits of the case, the first witness relied upon by the prosecution is PW-2 Miss Pooja, daughter of the accused and the deceased. She was aged about 11 years at the time when she was examined in Court and is a child witness but she was found fit to be examined. According to her the accused is her step father. She was aged about 11 years at the time when she was examined in Court and is a child witness but she was found fit to be examined. According to her the accused is her step father. She states that the accused is her step father and he came back home on 14.1.2003 in a drunken condition. He then went to the village and again came back to the house in a jeep and wanted that Darshna Devi should accompany him to attend a marriage of a relation. Darshna Devi allegedly told the accused that she would not go to the marriage in a jeep but would prefer to go by a bus. Thereupon the accused started beating Darshna Devi and bolted the door from inside. He then poured kerosene oil on Darshna Devi and set her on fire. Further according to her, her mother could not control the fire and then her father opened the door. In the meantime one lady and a small girl came there, who put a cloth on Darshna Devi. The clothes of her mother were burnt in the fire. She further states that the accused threatened her not to raise an alarm otherwise he would set her on fire also. In cross-examination she admits that she was interrogated by the police. She also states that she had not seen the jeep brought by her father standing outside the house. She was confronted with her statement recorded u/s 161 wherein it was not recorded that her father had come home in a drunken condition. In the said statement there is no mention about the accused going back to the village and coming back in a jeep. She further states that when the incident took place she alongwith her sister was sleeping in a room and part of the room was also used as a kitchen. She denied the suggestion that the accused tried to extinguish the fire and stated that while he was taking off his sweater the same caught fire. In the statement u/s 161 Cr.P.C it is also not recorded that she had been threatened by the accused not to disclose anything. She admits that after the incident she was staying with her maternal uncle but had denied the suggestion that she had been tutored by PW-1 Ram Pal to make a false statement. 7. In the statement u/s 161 Cr.P.C it is also not recorded that she had been threatened by the accused not to disclose anything. She admits that after the incident she was staying with her maternal uncle but had denied the suggestion that she had been tutored by PW-1 Ram Pal to make a false statement. 7. The statement of the child witness has to be treated with great care and caution. With regard to the appreciation of the statement of a child witness we may refer to the following decisions, which are relevant as to how the statement of a child witness should be appreciated and what precautions should be taken while appreciating the evidence of such a witness. Reference can be made to the decision in Bhagwan Singh and Others Vs. State of M.P., (2003) 3 SCC 21 . The observations made in Para-19 are relevant and are being reproduced below:- 19. The law recognizes the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the court to be a witness whose sole testimony can be relied upon without other corroborative evidence. The evidence of a child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the court looks for adequate corroboration from other evidence to his testimony. (See Panchhi v. State of U.P.) 8. The decision in Suryanarayana Vs. State of Karnataka, 2001(1) Crimes 99 (SC), shows that followings observations were made in Para-5, which are relevant and are being reproduced below:- The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The witness of PW2 cannot be discarded only on the ground of her being of Teen age. The fact of being PW2 a child witness would require the court to scrutinize her evidence with care and caution. The witness of PW2 cannot be discarded only on the ground of her being of Teen age. The fact of being PW2 a child witness would require the court to scrutinize her evidence with care and caution. If she is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony if a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not. 9. Reference can also be made to the decision in Acharaparambath Pradeepan and another Vs. State of Kerala, (2006) 13 SCC 643. The observations made in Paras 44, 46 and 48 are relevant and are being reproduced below:- 44. Section 118 of the Evidence Act seeks to from intellectual weaknesses. It reads as under: 118. Who may testify.- All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. In terms of the said provision, therefore, all persons shall be competent to testify unless by reason of tender years, the court considers that they are incapable of understanding the questions put to them and of giving rational answers. It is for the Judge to satisfy himself as regards fulfilment of the requirements of the said provision. In terms of the said provision, therefore, all persons shall be competent to testify unless by reason of tender years, the court considers that they are incapable of understanding the questions put to them and of giving rational answers. It is for the Judge to satisfy himself as regards fulfilment of the requirements of the said provision. The opinion of the learned Judge had been recorded and, thus, it satisfies the test lad down by this Court in Rameshwar v. State of Rajasthan. 46. A child indisputably is competent to testify if he understands the question(s) put to him and gives rational answer(s) thereto. None of the witnesses have been found to be suffering from any intellectual incapacity to understand the questions and give rational answers thereto. 48. Indisputably, certain factors are required to be considered as regards reliability of the testimony of the child witnesses but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of child witness." 10. It is, therefore, clear that while appreciating the statement of a child witness, the Court has to be more careful, rule out the possibility of tutoring and should also look for corroboration if necessary from some evidence which could give credence to the testimony of a child witness. 11. In this case there are glaring inconsistencies between the statement made by Pooja to the police and there are various improvements in her statement in Court. A child can be tutored to speak what is not the truth. Normally, a child would always tell the truth but under the influence of family members a child may be compelled to tell a lie especially when the child believes that the other side is an enemy or is responsible for the death of her mother. We are not discarding the statement of Pooja but we are of the view that this is to be scrutinized with great care and caution. 12. The other important witness is PW-6 Sehti Bibi. Her version is that on 14.1.2002 she alongwith her small daughter had gone to look for her son. We are not discarding the statement of Pooja but we are of the view that this is to be scrutinized with great care and caution. 12. The other important witness is PW-6 Sehti Bibi. Her version is that on 14.1.2002 she alongwith her small daughter had gone to look for her son. They found her son in the village and on their back to their house she heard the cries "Jal Gai Bachao Bachao" from the house of Darshna Devi and she then went to her house and found that Darshna Devi who was on fire was standing near the water tap. She was almost naked and Sehti Bibi covered her with a cloth and then with a shawl. She then took Darshna Devi to the verandah of her house. In the meantime some labourers came there and she asked them to extinguish the fire inside the room of Darshna Devi. When she asked Darshna Devi how she had been set on fire, Darshna Devi told the witness that her husband had come home and threatened to kill her with fire and further that her husband had celebrated the festival by setting her body on fire. She then went back to her house. In cross-examination this witness states that her house is situated at 500 yards from that of the accused. She admits that there are no houses near the house of the accused and there is one approach to the house of the accused from the main road. She also admits that only a loud cry can be heard if a person is walking by the side of the house on the road. She admits that her statement was recorded by the police after the death of Darshna Devi. She was confronted with her statement wherein she had not stated that the deceased had uttered the words "Jal Gai Bachao Bachao". However, she has in her statement stated that she had heard the cries of Darshna Devi and this in our opinion would not amount to an improvement. However, importantly in cross-examination she states that when she reached the house of the accused the fire on the body of Darshna Devi stood already extinguished and both Darshna and her husband were standing near the water tap. However, importantly in cross-examination she states that when she reached the house of the accused the fire on the body of Darshna Devi stood already extinguished and both Darshna and her husband were standing near the water tap. This is contrary to the prosecution case because this would indicate that it was the accused who had extinguished the fire because admittedly PW-2 Pooja was a small child who did nothing to extinguish the fire. 13. The defence examined DW-1 Aziz Mohammad. According to him when he alongwith PW-6 Sehti and three other persons Ramjan Mohammad, Mast Mohammad and Noor Ali were returning from labour work they heard the cries of a woman saying "Jal Gai Jal Gai Bachao Bachao". They all went to the house of the accused and saw a lady whose clothes were on fire standing near the water tap. The accused was trying to extinguish the fire. He states that PW-6 and her daughter put a shawl on the half naked body of Darshna Devi. Thereafter the accused went to bring a vehicle to take his wife to the hospital. He in cross-examination admitted that the wife of the accused had stated that the accused had celebrated the festival by putting her on fire. Admittedly, it was the accused who arranged for a vehicle to take his wife Darshna Devi to the hospital. In this behalf reference may be made to the statement of Mukesh Kumar PW-9 who states that on 14.1.2003 accused approached him and asked him to take him to the hospital. The hands of the accused were burnt. The accused first took the jeep to his house where he informed the driver that his wife had also suffered burn injuries. Then the driver of the jeep took the accused, the wife of the accused and the mother of the accused in his jeep. They first went to the house of the father of the accused who also boarded the jeep and he dropped them at the hospital. 14. After reaching the hospital it was PW-10 Dr. Sunil Sharma who first examined Darshna Devi and according to him when he inquired from her as to what had happened, she had informed him that she had accidentally suffered the burns. 14. After reaching the hospital it was PW-10 Dr. Sunil Sharma who first examined Darshna Devi and according to him when he inquired from her as to what had happened, she had informed him that she had accidentally suffered the burns. This is also recorded in the MLC Ext.PD wherein it is stated that the alleged incident of burn injuries took place at 9.30 p.m. In answer to a Court question he has stated that when he asked from Darshna Devi how she caught fire she told him that a Can of kerosene oil fell accidentally upon her when she was going to prepare meal for her husband. She has just lit a match stick and therefore her body caught fire. 15. It is not necessary to discuss the statements of all the other doctors. However, PW-12 Dr. Indu Bhardwaj stated that when she inquired from Darshna Devi she told her that she had no desire to live and on 22.1.2003 she recorded the same in treatment chart Ext.PG. The Court asked her specific question whether she had inquired about the cause of burn injury from Darshna Devi. In answer thereto she stated that she did not make any such inquiry but during the course of treatment Darshna Devi had stated "Mera Sunder Sharir Jala Diya. Main Jeena Na Chahti hoon." However, this statement is not recorded in Ext.PG. 16. Coming to the statements of the family members of the deceased, PW-1 Ram Pal, real brother of the deceased, reached the hospital very next day. According to him he asked Darshna Devi what had happened. The accused was also present there and he confessed that he had poured kerosene oil on Darshna Devi. According to him there were several persons including relations and they intervened that the matter be not reported to the police and be amicably settled. This witness also states that the police was also present in the hospital, who persuaded him not to report the matter. He was confronted with his statement Ext.PA wherein there is no mention that the accused had confessed regarding pouring kerosene oil on the body of Darshna Devi. His explanation is that since he was under tension he did not make the statement. He also admitted that when he reached the district hospital Darshna Devi was admitted in the female ward whereas accused was admitted in the male ward. His explanation is that since he was under tension he did not make the statement. He also admitted that when he reached the district hospital Darshna Devi was admitted in the female ward whereas accused was admitted in the male ward. He also admitted that while making the statement u/s 154 Cr.PC. he had not told the police that he had been persuaded by the other persons and the police officials not to report the matter. According to him his sister was perfectly all right from 15.1.2003 to 24.1.2003. 17. PW-3 Pawan Kumar is another brother who also states that Darshna Devi had told him that she had been set on fire by the accused. To the similar effect is the statement of Krishna Devi, who is real sister of Darshna Devi. She in her statement made to the police had not stated that her sister had told her that she had been burnt by the accused. 18. This is a case where there is evidence which supports both sides. On the one hand is the statement of PW-2 Pooja and PW-6 Sehti Bibi but as stated above Pooja is a child witness whose evidence has to be examined with great care and caution. As far as PW-6 is concerned there are some contradictions in her statement in as much as she herself states that by the time she reached the spot the fire had been extinguished. On the other hand, is DW-1 who supports the defence to the extent that the accused was trying to extinguish the fire though in cross examination he does admit that the deceased claimed that the accused had celebrated the festival by setting her on fire. Thus there are two contradictory versions and this may have been a case where the accused could have been convicted except for the fact that the police had been totally remiss in carrying out its function. There is no explanation worth the name why the police despite being telephonically informed did not care to record the statement of Darshna Devi for almost 10 days. In such eventuality we will be constrained to give the benefit of doubt to the accused. Furthermore even the statements of all the doctors in this case are contradictory. PW-10 emphatically states that the deceased had told him that she had accidentally caught fire whereas according to PW-12 Dr. In such eventuality we will be constrained to give the benefit of doubt to the accused. Furthermore even the statements of all the doctors in this case are contradictory. PW-10 emphatically states that the deceased had told him that she had accidentally caught fire whereas according to PW-12 Dr. Indu Bhardwaj the deceased told her that "Mera Sunder Sharir Jala Diya. Main Jeena Na Chahti hoon", which means that she was set on fire by somebody. Another circumstance is the explanation of the family members of the deceased why they did not lodge the report for 15 days with the police cannot be accepted at its face value. If the brothers, sister-in-laws had all been told by the deceased that she had been set on fire by her husband they should have immediately lodged a report with the police. One can understand if there is one family member of the deceased person then such family member may not have the courage to make such a report but when all the family members are together and the deceased had actually told them that she had been set on fire they should have reported the matter to the police. The mother and father of the accused have not been examined. The version of the jeep driver is neither here nor there. In fact his statement contradicts the statement of child witness because if the evidence of all the witnesses are seen it is apparent that there was no jeep at the spot when the fire was extinguished. The version of Pooja that her step father first came home in drunken condition and thereafter he went back to the village and again came back to the house in a jeep and asked his wife to accompany him to the marriage of some relation makes her testimony doubtful especially when the prosecution has not placed any material on record to show marriage of which family member was going to be solemnized. 19. Keeping in view all the aforesaid circumstances, we are of the considered opinion that the benefit of doubt will have to be given to the accused. We, therefore, dismiss the appeal. Bail bonds are ordered to be discharged. 19. Keeping in view all the aforesaid circumstances, we are of the considered opinion that the benefit of doubt will have to be given to the accused. We, therefore, dismiss the appeal. Bail bonds are ordered to be discharged. We, however, direct that a copy of this judgement be sent to the Director General of Police who shall conduct an inquiry as to why the police officials on receipt of information from the doctor did not take action as indicated hereinabove. This inquiry be completed latest by 31st December, 2012 and the report be placed in Court by 10th January, 2013.