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Himachal Pradesh High Court · body

2014 DIGILAW 1130 (HP)

Chaman Lal v. State of H. P.

2014-08-26

RAJIV SHARMA, SURESHWAR THAKUR

body2014
Judgment Rajiv Sharma, J. This appeal is instituted against the judgment rendered by the learned Sessions Judge, Chamba dated 16.7.2010 and consequent order dated 3.8.2010 in Sessions Trial No. 19 of 2010, whereby appellant-accused (hereinafter referred to as the accused) who was charged with and tried for offence under Sections 302 IPC, was convicted and sentenced to undergo imprisonment for life and to pay fine of Rs. 50,000/- and in default of payment of fine amount he was ordered to undergo simple imprisonment for three years. The period of detention during investigation and trial was directed to be set off from the sentence of imprisonment. 2. The case of the prosecution, in a nut shell, is that on 7.12.2009, accused poured kerosene oil on his wife namely Saro Devi at his house at village Rampur, Pargana Dhundi, Tehsil and District Chamba. She was put on fire with a matchstick. Some people came for her rescue and accused also tried to rescue her by putting off the fire. She suffered severe burn injuries. Her brother PW-2, was informed. He reached on the spot and she was shifted to hospital at Chamba for medical aid. Thereafter she was referred to Tanda, where she remained admitted for some time. The brother of the deceased was advised to take her back. She died on 15.1.2010. Post mortem was conducted on the body. The investigation was completed and challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 12 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C to which he pleaded not guilty. The accused has examined DW-1 Smt. Kamla and DW-2 Master Kamal Kumar as defence witnesses. The learned Trial Court convicted and sentenced the accused, as stated hereinabove. Hence, the present appeal. 4. Mr. K.B. Khajuria Advocate, appearing for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. M.A. Khan, learned Addl. Advocate General, has supported the judgment of the learned Sessions Judge dated 16.7.2010 and consequent order dated 3.8.2010. 5. We have heard learned counsel for the parties and gone through the records of the case carefully. 6. PW-1 Amar Singh, testified that he received Ext. On the other hand, Mr. M.A. Khan, learned Addl. Advocate General, has supported the judgment of the learned Sessions Judge dated 16.7.2010 and consequent order dated 3.8.2010. 5. We have heard learned counsel for the parties and gone through the records of the case carefully. 6. PW-1 Amar Singh, testified that he received Ext. PW- 1/A from the then A.D.M. Chamba, that he should record statement of one Saro who was admitted in the hospital. On 18.12.2009, at about 11/11.15 AM when he reached the hospital, Saro was found admitted on the third floor of the hospital. The doctor and Dy. Superintendent of Police, Chamba were also present alongwith the brother, mother, father of Saro and her mother-in-law. He asked in their presence from the doctor whether Saro was fit to make statement. The doctor opined that she was fit to make statement. He enquired from Saro about her family. She also stated that accused, her husband had sprinkled kerosene oil on her and she was put on fire by litting the fire with a matchstick. On his enquiry, as to where were her children at that time, she told that the children were playing in the compound. He enquired from her as to why she was put on fire by the accused. She told that the accused had proclaimed her “kanjri”. He also asked her to leave his house. She had told that the villagers had extinguished the fire alongwith the accused. The statement of Saro is Ext. PW-1/B. The Dy. Superintendent of Police, K.D. Sharma, witnessed the recording of statement by putting his signatures. His statement was also recorded by the police vide Ext. D-1. He reached in the hospital by 11/11.15 AM (confronted with Ext. D-1 wherein it is not so recorded). 7. PW-2, Ramesh Kumar is the brother of the deceased. He stated that accused used to keep on fighting with his sister on account of some suspicion. On 7.12.2009, at about 6.30 PM, he was informed by his cousin, Yashpal that he had received telephonic information from the accused that the deceased was burnt. On telephonic talk with his sister, she told him that she had been put on fire. Thereafter, he engaged the vehicle and rushed to the house of the accused. The deceased was found on the bed badly burnt having no clothes on her person. On telephonic talk with his sister, she told him that she had been put on fire. Thereafter, he engaged the vehicle and rushed to the house of the accused. The deceased was found on the bed badly burnt having no clothes on her person. She was taken to the hospital by him. The matter was reported to the police. He was accompanied in carrying his sister to the hospital by his cousin Jagdish. Some persons from the nearby relations had also reached there. The police came to the hospital but the condition of his sister was not such to make a statement. On 8.12.2009, during evening, Tehsildar had come to the hospital. Deceased made statement before the Tehsildar that kerosene was sprinkled by her husband on her and had lit fire with matchstick and thereby she was badly burnt. She was referred to Tanda Medical College and Hospital on 15.12.2009. The condition of his sister did not improve. Doctor advised him to take his sister to home on 22.12.2009. He brought his sister to his house. She died on 15.1.2010. In a court question put to him, he stated that the statement was recorded by the Tehsildar at 11.30 AM on 8.12.2009. In his cross-examination, he admitted that no proceedings were pending before any Court or authority regarding any quarrel between the accused and deceased. He did not remember the telephone number from which he contacted his sister. He had telephoned his sister from the mobile of the sister of the accused, who was staying at his house as she was appearing in 5th standard examination. He also admitted that when the statement was made before the Tehsildar, her mother in law, he, his father and Dy. Superintendent of Police, were also present as well as the doctor. 8. PW-3, Yashpal deposed that he received a telephonic information on 7.12.2009 from the accused that Saro Devi was burnt. He went to Ramesh, brother of Saro and informed him about the information received. 9. PW-4, Om Parkash deposed that he was a Ward Member since 2006. He had gone to village Panditiyali to attend the marriage of his nephew. He reached near Pukhri when he received telephonic information through his father stating that Saro Devi had been burnt and asked him to intimate her parents. He tried to contact them. 9. PW-4, Om Parkash deposed that he was a Ward Member since 2006. He had gone to village Panditiyali to attend the marriage of his nephew. He reached near Pukhri when he received telephonic information through his father stating that Saro Devi had been burnt and asked him to intimate her parents. He tried to contact them. When he reached at the house of the accused, Saro was crying “Bachao Bachoa”. On enquiry, she told him that she had herself thrown kerosene oil on her. Thereafter people from parental side of Saro came and took her to the hospital. PW-4, Om Parkash was declared hostile. He was cross-examined by the learned Public Prosecutor. He admitted that he had not told the police that the deceased had told him that she herself had poured kerosene oil on her. In cross examination by the learned defence counsel, he reiterated that on his enquiry, the deceased had told him that she herself poured kerosene oil on her body. 10. PW-5, Ravindera deposed that on 7.12.2009, there was marriage in their house, in which the accused had also come. He was declared hostile and permitted to be cross-examined by the learned Public Prosecutor. He denied the suggestion that Saro Devi and accused had a quarrel on account of taking liquor by the accused. He also denied the suggestion that she told that the accused has put her on fire but she stated that she put herself on fire. 11. Statements of PW-6 H.C. Pawan Kumar, PW-7 Nazir Hussain, PW-8 H.H.C. Gian Chand and PW-9 A.S.I. Kuldeep Singh, are formal in nature. 12. PW-10 K.D. Sharma, Dy. Superintendent of Police, deposed that he was posted as Dy. Superintendent of Police at Hqrs. Chamba, since August 2009. On 8.12.2009, Tehsildar Shri Amar Singh, recorded the statement of Smt. Saro Devi in Civil Hospital Chamba, Ext. PW-1/B. He signed the statement. In his cross examination, he deposed that at the time of recording of the statement, the relatives of Saro Devi and other patients were present in the ward. The statement was recorded by Tehsildar in his hand. He denied the suggestion that Ext. PW-1/B was not in the hand of Tehsildar. He did not remember if the statement was recorded by A.S.I. Santosh Kumar. Volunteered that, it was dictated by Tehsildar word by word after, asking questions from the patient Saro Devi. The statement was recorded by Tehsildar in his hand. He denied the suggestion that Ext. PW-1/B was not in the hand of Tehsildar. He did not remember if the statement was recorded by A.S.I. Santosh Kumar. Volunteered that, it was dictated by Tehsildar word by word after, asking questions from the patient Saro Devi. She answered all the questions in Hindi. 13. PW-11, Dr. Vishal Thakur deposed that on 7.12.2009, Saro Devi was brought to the hospital at 9.15 PM with the history of assault by her husband as she disclosed it herself. The patient had suffered 70% burns over the body. The police was informed. He issued MLC Ext. PW-11/A. He also examined the accused on 10.12.2009, at 10.15 PM. According to him, the patient had suffered burn injuries on the left hand to the extent of 3%. There was also bruise over the right elbow. He issued MLC Ext.PW- 11/C. The probable duration of burn injuries was 48 to 72 hours and the burns suffered by Saro Devi were within 6 hours. 14. PW-12, A.S.I. Mukesh Kumar deposed that he received telephonic message from the hospital Chamba through M.H.C. of the police station that one lady has been brought to the hospital with burn injuries. On receipt of the information, he proceeded to the hospital. Thereafter he moved an application to the Medical Officer, vide Ext. PW-12/B, seeking opinion whether the patient was fit to make statement or not. The medical officer opined that the patient was not fit to make statement. Then the statement of Ramesh Kumar, brother of deceased was recorded vide memo Ext. PW-12/A. He made endorsement of the same vide Ext. PW-12/B. The same was sent to the police station Sadar, Chamba, on the basis of which FIR PW-9/A was recorded. The medical examination of the patient was got conducted vide MLC Ext. PW- 11/A. On 8.12.2009, Tehsildar Chamba recorded the statement of Saro Devi in the hospital. He also obtained opinion of the Medical Officer whether Saro Devi was fit to make statement or not vide application Ext. PW-12/C. The Medical Officer declared her to be fit to make statement. The statement was recorded vide Ext. PW- 1/B. He also moved an application for medical examination of the accused. In his cross examination, he deposed that on the next date, an application was moved after 10.00 PM. PW-12/C. The Medical Officer declared her to be fit to make statement. The statement was recorded vide Ext. PW- 1/B. He also moved an application for medical examination of the accused. In his cross examination, he deposed that on the next date, an application was moved after 10.00 PM. He made telephonic call to the SDM and called the Tehsildar in the office. Tehsidlar Chamba, reached in the hospital at about 10-12.00 AM/Noon. When the Tehsildar reached hospital, brother, father, mother in law of Saro Devi and Deputy Superintendent of Police K.D. Sharma, were already present there. The statement of Saro Devi was recorded by Tehsildar in his hand. According to the post mortem report Ext. PW-12/F, the deceased died due to septic shock. The probable time that has elapsed between injury and death was one month eight days and between death and post mortem was 6 hours. 15. The accused has also produced DW-1 Smt. Kamla as his witness. DW-1, Kamla deposed that Saro herself sprinkled kerosene oil on her body and got burnt. Firstly, she was taken to Chamba hospital for treatment where she remained with the deceased and thereafter, she accompanied her to Tanda. She revealed herself at her home, in the hospital at Chamba and lastly at Tanda that she had sprinkled kerosene on her person and then put herself on fire. 16. DW-2, Master Kamal Kumar is the son of the accused. He was declared competent witness by the trial Court after putting few questions to him. According to him, on the day of occurrence, he alongwith his two brothers was playing in the compound of their house. When his mother caught fire, they informed their father who was working in kitchen garden that their mother has caught fire. On that day, the grand mother had gone to participate in marriage. Immediately on coming to know of deceased having caught fire, accused came to her rescue and extinguished the fire with his hands. In the process, he also suffered some burn injuries on his hands. Thereafter, maternal uncle came there and deceased was taken to the hospital. In his cross examination, he denied the suggestion that the accused used to address his mother as “Kanjri” (lady of bad character). He also denied the suggestion that his father used to quarrel with his mother. 17. The statement of PW-2, Ramesh Kumar was recorded vide Ext. Thereafter, maternal uncle came there and deceased was taken to the hospital. In his cross examination, he denied the suggestion that the accused used to address his mother as “Kanjri” (lady of bad character). He also denied the suggestion that his father used to quarrel with his mother. 17. The statement of PW-2, Ramesh Kumar was recorded vide Ext. PW-12/A. According to the averments made in Ext. PW- 12/A, the marriage of his sister was solemnized with accused in the year 2002. His brother in law and sister used to fight. He was suspecting his character. On 7.12.2009, at 6.35 PM, his brother in law informed his relation Yashpal on telephone that his sister was brunt. He narrated this incident to him. He contacted his sister on someone’s telephone. His sister told him that “Haun Phuki Mujhe Bachao”. He insisted who has put her on fire. But she did not disclose anything. However, he had suspicion that his sister has been put on fire by sprinkling kerosene oil by the accused. Ramesh Kumar, while appearing as PW-2, in his statement, has disclosed that on 7.12.2009, at 6.30 PM, he was informed by his cousin Yashpal that he has received telephonic information from the accused that the deceased had got burnt. On telephonic talk with his sister, she told him that she had been put on fire. Thereafter, he rushed to the house of the accused. She was taken to the civil hospital Chamba. In his cross examination, he deposed that he did not remember the telephone number from which he contacted his sister. He had telephoned his sister from the mobile of the sister of the accused, who was staying in his house as she was appearing in 5th standard examination. Phone was attended by his sister on the mobile of the accused. According to PW-2, Ramesh Kumar, he had a telephonic talk with his sister. In Ruka Ext. PW-12/A, it is specifically stated that he has asked his sister who has put her on fire, but she has not disclosed the name of the person. This was the first version recorded of the incident dated 7.12.2009. According to PW-2 Ramesh Kumar, his sister has only told him that she has been put on fire. In Ruka, it is stated that he had used someone’s telephone. This was the first version recorded of the incident dated 7.12.2009. According to PW-2 Ramesh Kumar, his sister has only told him that she has been put on fire. In Ruka, it is stated that he had used someone’s telephone. However, while appearing as PW-2, Ramesh Kumar deposed that he has telephoned his sister from the mobile of the sister of the accused, who was staying at his house and she was appearing in 5th standard examination. It is not believable that the 5th standard student would carry telephone with her. According to PW-2 Ramesh Kumar, the telephone was attended by his sister on the mobile phone of the accused. She was burnt to the extent of 70%. It is doubtful, whether she was in a position to talk to his brother on telephone and that too on the telephone of the accused. 18. Now, we will advert to the statement of the deceased (dying declaration) recorded by PW-1 Amar Singh. According to PW-1 Amar Singh, he reached the hospital on 8.12.2009 at about 11-11:15 AM. He recorded the statement of the deceased vide Ext. PW-1/B. PW-2, Ramesh Kumar deposed that Tehsildar had come to the hospital on 8.12.2009 during evening. A Court question was put to him and he answered that the statement was recorded by the Tehsildar by 11:30 AM on 8.12.2009. PW-10 K.D. Sharma, Dy. Superintendent of Police deposed that the statement was recorded by Tehsildar in his hand. He denied that Ext. PW-1/B was not in the hand of the Tehsildar. He did not remember if the statement was recorded by A.S.I. Santosh Kumar. Volunteered that, it was dictated by Tehsildar word by word, after asking questions from the patient Saro Devi. It is thus evident that PW-1 Amar Singh has only dictated the statement to someone. PW-12, Mukesh Kumar deposed that the statement of Saro Devi was recorded by Tehsildar in his hand. There is variance in the statements as to when PW-1 Amar Singh, arrived in the hospital. According to PW-1 Amar Singh, he reached in the hospital on 8.12.2009 at about 11/11:15 AM. PW-2 Ramesh Kumar in his cross examination, deposed that Tehsildar has come in the hospital in the evening on 8.12.2009. It is only when the Court question was put and he replied that the statement was recorded by the Tehsildar by 11:30 AM on 8.12.2009. PW-2 Ramesh Kumar in his cross examination, deposed that Tehsildar has come in the hospital in the evening on 8.12.2009. It is only when the Court question was put and he replied that the statement was recorded by the Tehsildar by 11:30 AM on 8.12.2009. PW-12 Mukesh Kumar, admitted in his cross-examination that Tehsildar, Chamba reached in the hospital at about 10-12 AM. The dying declaration should be genuine and disclose true story of its maker. It must be free from all doubts. It should not be tainted with doubts. As per the statement of PW-4 Om Parkash, on his inquiry, the deceased told that she had herself thrown kerosene oil on her. He was declared hostile. In his cross-examination, he also admitted that he has never noticed any quarrel in between the deceased and the accused. He reiterated that on inquiry, the deceased had told him that she herself poured kerosene oil on her body. PW-2, Ramesh Kumar also admitted in his cross-examination that he could not tell the date or month of any particular incident of quarrel between the accused and his sister. No proceedings were pending before any court or authority regarding any quarrel in between the accused and the deceased. PW-5, Ravindera also denied the suggestion that Saro and the accused had a quarrel on account of taking liquor by the accused. He also denied the suggestion, when cross examined by the learned Public Prosecutor, that she had told that the accused had put her on fire but she reiterated that she has put herself on fire. 19. DW-2, Master Kamal Kumar is the son of the accused and the deceased. He was 8 years of age but found to be competent witness by the trial Court. According to him, he alongwith two brothers was playing in the compound of the house on the date of the incident. When his mother caught fire, they informed their father who was working in the kitchen garden that their mother has caught fire. Immediately on coming to know of the deceased having caught fire, the accused came to her rescue and extinguished the fire with his hands. In the process he suffered some burn injuries on his hand. It has also come in the dying declaration Ext. PW-1/B that her husband and one person Gyanu have put her on fire. The accused was also medically examined. In the process he suffered some burn injuries on his hand. It has also come in the dying declaration Ext. PW-1/B that her husband and one person Gyanu have put her on fire. The accused was also medically examined. The MLC is Ext. PW-11/C. PW-11 Dr. Vishal Thakur has noticed injury marks over the left hand to the extent of 3%, bruise over the right elbow. The probable duration of burn injuries was between 48 to 72 hours. There are inconsistencies in the statement of witnesses, the manner in which the dying declaration Ext. PW-1/B was recorded by PW-1 Amar Singh. Even as per Ext. PW-12/A, the deceased has not disclosed to her brother that by whom she was put on fire. PW-4, Om Parkash and PW-5, Ravindera have not supported the case of the prosecution. DW-2 Master Kamal Kumar, though minor, was found to be competent witness. According to him, his mother had caught fire and they have informed their father who was working in the kitchen garden. He has put off the fire. It has also come in the statement of PW-1 that at that time of recording of the statement, the Dy. Superintendent of Police, Chamba, alongwith the brother of the deceased, father of the deceased and mother-in-law of the deceased were present. PW-2 Ramesh Kumar admitted in his cross examination that when the statement of his sister was made before the Tehsildar, her mother in law, he, father and Dy. Superintendent of Police were also present as well as the doctor. 21. Their lordships’ of the Hon’ble Supreme Court in the case of State of Haryana vrs. Ram Singh, reported in (2002) 2 SCC 426 , have held that the evidence tendered by defence witnesses cannot always be termed to be a tainted one. The defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. It has been held as follows: “19. Significantly all disclosures, discoveries and even arrests have been made in the presence of three specific persons, namely, Budh Ram, Dholu Ram and Atma Ram - no independent witness could be found in the aforesaid context - is it deliberate or is it sheer coincidence - this is where the relevance of the passage from Sarkar on Evidence comes on. The ingenuity devised by the prosecutor knew no bounds - can it be attributed to be sheer coincidence? The ingenuity devised by the prosecutor knew no bounds - can it be attributed to be sheer coincidence? Without any further consideration of the matter, one thing can be, more or less with certain amount of conclusiveness be stated that these at least create a doubt or suspicion as to whether the same have been tailor-made or not and in the event of there being such a doubt, the benefit must and ought to be transposed to the accused persons. The trial court addressed itself on scrutiny of evidence and came to a conclusion that the evidence available on record is trustworthy but the' High Court acquitted one of the accused persons on the basis of some discrepancy between the oral testimony and the documentary evidence as noticed fully hereinbefore. The oral testimony thus stands tainted with suspicion. If that be the case, then there is no other evidence apart from the omnipresent Budh Ram and Dholu Ram, who however are totally interested witnesses. While it is true that legitimacy of interested witnesses cannot be discredited in any way nor termed to be a suspect witness but the evidence before being ascribed to be trustworthy or being capable of creating confidence, the court has to consider the same upon proper scrutiny. In our view, the High Court was wholly in error in not considering the evidence available on record in its proper perspective. The other aspect of the matter is in regard to the defence contention that Manphool was missing from the village for about 2/3 days and is murdered on 21-1-1992 itself. There is defence evidence on record by DW 3 Raja Ram that Manphool was murdered on 21-1-1992. The High Court rejected the defence contention by reason of the fact that it was not suggested to Budh Ram or Dholu Ram that the murder had taken place on 21-1-1992 itself and DW 3 Raja Ram had even come to attend the condolence and it is by reason therefor Raja Ram's evidence was not accepted. Incidentally, be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one - the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution. Rejection of the defence case on the basis of the evidence tendered by the defence witness has been effected rather casually by the High Court. Suggestion was there to the prosecution witnesses, in particular PW 10 Dholu Ram that his father Manphool was missing for about 2/3 days prior to the day of the occurrence itself - what more is expected of the defence case: a doubt or a certainty - jurisprudentially a doubt would be enough: when such a suggestion has been made the prosecution has to bring on record the availability of the deceased during those 2/3 days with some independent evidence. Rejection of the defence case only by reason thereof is far too strict and rigid a requirement for the defence to meet - it is the prosecutor's duty to prove beyond all reasonable doubts and not the defence to prove its innocence - this itself is a circumstance, which cannot but be termed to be suspicious in nature.” 22. Their lordships’ of the Hon’ble Supreme Court in the case of Sanjiv Kumar vrs. State of Punjab, reported in (2009) 16 SCC 487 , have held that generally defence witnesses are observed to be untruthful, however, it is not to say that in all cases defence witnesses must be held to be unthruthful, merely because they support the case of accused. Right given to accused to explain incriminating circumstances appearing against him, serves a purpose, which cannot be ignored outrightly. “23. It has been observed that defence witnesses are often untruthful, but that is not to say that in all cases defence witnesses must be held to be untruthful, merely because they support the case of the accused. The right given to the appellant to explain the incriminating circumstances appearing against him serves a purpose, and cannot be ignored outright. In every case the court has to see whether the defence set up by the accused is probable, having regard to the totality of the facts and circumstances of the case. If the defence appears to be probable, the court may accept such defence. This is primarily a matter of appreciation of evidence on record and no straitjacket formula can be enunciated in this regard.” 23. If the defence appears to be probable, the court may accept such defence. This is primarily a matter of appreciation of evidence on record and no straitjacket formula can be enunciated in this regard.” 23. Since there are inherent contradictions, the manner in which the statement has been recorded, corroborative evidence was also required. No motive has been attributed to the accused why he has put his wife on fire except the bald statement made by PW-2, Ramesh Kumar. He has not narrated when the accused and the deceased have quarreled. Moreover, no matters were pending before any Court or any authority concerning their dispute. The prosecution has failed to prove the case against the accused beyond reasonable doubt. 24. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 16.7.2010 and consequent order dated 3.8.2010, rendered by the learned Sessions Judge, Chamba, in Sessions trial No. 19 of 2010, is set aside. The accused is acquitted of the charge framed under Section 302 IPC, by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 25. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.