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2014 DIGILAW 124 (PNJ)

Om Parkash v. State of Haryana

2014-01-15

JASPAL SINGH, RAJIVE BHALLA

body2014
Judgment JASPAL SINGH, J. The present appeal has been preferred by appellant-Om Parkash, feeling dissatisfied against the judgment and order of conviction dated 17.04.2002/18.04.2002 whereby he has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs.2000/and in default thereof, to undergo further simple imprisonment for 2 months, for the commission of murder of his wife. 2. The case of the prosecution unfolded by Kamlesh, the second wife of Om Parkashappellant, is that her husband has married twice. His first wife Smt. Santra gave birth to one daughter namely Kanta, who is married. About 14/15 years ago, she (Kamlesh) married Om Parkash and they have four children. Om Parkash always used to beat her as well as Smt. Santra after consuming liquor and used to command them to leave his house. On May 23, 2001 at about 7:00 P.M., Om Parkash asked Smt. Santra as usual to get out of the home but Smt.Santra refused to obey him. Then, Om Parkash splashed kerosene oil at Santra and set her on fire. Smt. Santra raised rescue call 'bachao bachao' which attracted Sheela, her real sister and some other persons from the locality. Her sister as well as their nighbours tried to extinguish the fire by putting quilt on Smt. Santra but the fire could not be controlled and due to burns, she fell down in the courtyard. It has further been stated by Kamlesh that Om Parkash has set Smt. Santra ablaze with the intention of killing her. She was rushed to PGIMS, Rohtak. On the basis of the aforesaid statement of Smt. Kamlesh, the case was registered against Om Parkash-appellant, under Section 307 IPC. Subsequently, an application was moved by the Investigating Officer to the jurisdictional Illaqa Magistrate for getting the statement of Smt. Santra recorded with regard to the cause of burning and her statement was recorded by Sh. R.K. Sharma, the Chief Judicial Magistrate, Rohtak. During the course of investigation, the Investigating Officer also took the photographs of the place of incident, prepared site plan, took into possession one bottle of kerosene oil, one pair of Hawai Chappals, partially burnt clothes and match box by converting the same into parcels. Unfortunately, Smt. Santra succumbed to her injuries on May 28, 2001. During the course of investigation, the Investigating Officer also took the photographs of the place of incident, prepared site plan, took into possession one bottle of kerosene oil, one pair of Hawai Chappals, partially burnt clothes and match box by converting the same into parcels. Unfortunately, Smt. Santra succumbed to her injuries on May 28, 2001. He also prepared the inquest report and got conducted the autopsy on the dead body of Smt. Santra. The doctor, who conducted the autopsy, opined that patient Smt. Santra had died due to antemortem burns and its complications, which were sufficient to cause death in natural course of events. Accordingly, offence was enhanced to one under Section 302 IPC. Om Parkash was arrested by the police on May 24, 2001. After completion of the investigation, challan under Section 302 of the IPC was presented in the court of ld. Jurisdictional Magistrate, who after completing formalities, committed the case to the court of Sessions vide order dated August 03, 2001. 3. There being prima facie evidence appearing in the report under Section 173 (2) of Cr.P.C. and the documents annexed with it, appellant-accused was charged to face trial under Section 302 IPC, for commission of the murder of his wife Smt. Santra. He did not plead guilty to the charge and claimed trial. 4. In order to substantiate the charge framed against the appellant-accused, the prosecution examined as many as 18 witnesses. PW1 ASI Surjeet Singh scribed formal FIR Ex. PA/1 on the basis of the statement of Kamlesh Ex. PA/2. PW2 Constable Sumit Kumar prepared the site plan Ex.PB while visiting the spot. PW3 Sub Inspector Ishwar Singh prepared the report under Section 173 Cr.P.C. and presented the same in court. PW4 Phool Singh UGC, PW11 HC Rajbir Singh and PW12 HC Badri Parshad submitted their duly sworn affidavits Ex. PC, Ex.PH and Ex. PJ respectively, deposing that they handled the case property of the instant case at different stages. PW5 HC Dharambir Singh prepared the inquest report in respect of the dead body of Smt. Santra and got conducted an autopsy. PW6 Sheela is the real sister of deceased Smt. Santra but she did not support the case/cause as to how the deceased had sustained burn injuries. Ultimately, she was declared hostile. PW7 Dilbagh is the real brother of Om Parkash. He also did not support the case of the prosecution. PW6 Sheela is the real sister of deceased Smt. Santra but she did not support the case/cause as to how the deceased had sustained burn injuries. Ultimately, she was declared hostile. PW7 Dilbagh is the real brother of Om Parkash. He also did not support the case of the prosecution. He denied having made statement Ex. PE to the police. PW8 Rajesh is the owner of the car, who brought Smt. Santra with burns to PGIMS, Rohtak. PW9 Kamlesh is the complainant and second wife of Om Parkash-appellant, who also refused to support the case of the prosecution. PW10 Dr. Ashok Rathi, medico legally examined Smt. Santra on May 23, 2001 at 10:05 p.m. and proved copy of MLR Ex. PF. He also sent ruqqa Ex.PG to the Police Post PGIMS, Rohtak for making arrangement to record the statement of Smt. Santra, in which he has specifically mentioned that there was an alleged history of burns due to kerosene spray and setting on fire by her husband on May 23, 2001 at 9:15 p.m. PW13 Dr. Raman Shukla conducted the autopsy on the dead body of Smt. Santra on May 29, 2001 and proved copy of postmortem report Ex.PK/A and initialled the other inquest proceedings. PW14 Sh. R.K. Sharma, the then Chief Judicial Magistrate, Rohtak has proved and testified that the statement of Smt. Santra Ex. PK was recorded by him after Smt. Santra was opined to be fit to make statement by Dr. Dharmender Sharma. PW15 Constable Surender has taken photographs of the place of occurrence and proved photographs Ex.P1 to Ex.P3 and negatives Ex.P4 to Ex.P6. PW16 Dr. Dharmender Sharma has testified that he gave opinion Ex.PM/A to the effect that Smt. Santra was fit to make statement and her state of mind was correct and was welloriented as to time, place and person. After completion of her statement, he again opined that she remained fit and made endorsement Ex.PK/1. PW17 Rajbir Singh witnessed the recovery memos Ex.PO, Ex.PQ and Ex.PR, vide which the investigating officer took into possession partially burnt clothes, Hawai Chappal, one bottle of kerosene and a match box. PW18 ASI Ram Kishan conducted the investigation of the case and has proved various documents. The prosecution also tendered in to evidence F.S.L. Report Ex.PS and closed its evidence. 5. PW18 ASI Ram Kishan conducted the investigation of the case and has proved various documents. The prosecution also tendered in to evidence F.S.L. Report Ex.PS and closed its evidence. 5. When the incriminating circumstances, appearing in prosecution evidence were put to the accused for elicting his explanation as required under Section 313 Cr.P.C., he denied all of them and pleaded innocence. He did not opt to adduce any evidence in his defence. 6. After considering rival submissions made by learned counsel for the parties and appraisal of the evidence, the appellant-accused was convicted under Section 302 IPC and sentenced as fully described in para No. 1 of this judgment. 7. Feeling aggrieved, the appellant has preferred the instant appeal, which was admitted for hearing vide order dated May 21, 2002. Lower court record was requisitioned and received. 8. While assailing the impugned judgment of conviction and order of sentence, it has been ebulliently argued by the learned counsel for the appellant that misappreciation of evidence and legal propositions applicable to facts and circumstances of the case have resulted into miscarriage of justice. Learned trial court has merely relied upon the dying declaration Ex.PK allegedly made by Smt. Santra (deceased) wherein she has stated that her husband after consuming liquor thrashed her and as usual asked her to get out from his house but when she refused to obey him, he sprinkled kerosene oil upon her and set her on fire. The dying declaration is a weak type of evidence and it does not find corroboration from any other evidence. Even otherwise, the dying declaration Ex.PK suffers from various infirmities having been made at the instance and tutoring of Smt. Kamlesh PW9, the second wife of the appellant. Moreover, the case of the prosecution is that on hearing commotion, Smt. Sheela PW6 and Dilbagh PW7 were attracted to the scene of occurrence. Smt. Sheela PW6 is none else but the sister of the deceased whereas Dilbagh PW7 is brother of the appellant. They did not support the case of the prosecution rather lent support to the defence version. 9. It has further been submitted by learned counsel for the appellant that the case of the prosecution which is mainly based upon the dying declaration Ex.PK, stood smashed in view of the testimony of Smt. Sheela PW6 and Dilbagh PW7, who did not toe the line of the prosecution. 9. It has further been submitted by learned counsel for the appellant that the case of the prosecution which is mainly based upon the dying declaration Ex.PK, stood smashed in view of the testimony of Smt. Sheela PW6 and Dilbagh PW7, who did not toe the line of the prosecution. They were declared hostile and though, subjected to cross-examination and confronted with their statements made to the police during investigation of the case nothing fruitful to the prosecution could be extracted. Smt. Kamlesh PW9, the second wife of the appellant, who put the investigating agency into motion, has categorically stated that Om Parkash was got implicated in this case by her as she had pressed upon Smt. Santra to involve him so that he may not harass her in future in case of her survival. In such a situation, the dying declaration Ex.PK cannot be said to be the out come of freewill or volition of the deceased and as such, it cannot be assigned any undue importance. 10. Next contention putforth by the learned counsel for the appellant is that there is nothing on the record to prove as to how the deceased received burn injuries especially there being no corroboration as material witnesses namely Smt. Sheela PW6, Dilbagh PW7 and Smt. Kamlesh PW9, who are closely related to the deceased as well as the appellant did not state anything in this regard. 11. Lastly, it has been argued by the learned counsel for the appellant that bottle of kerosene oil and match box recovered from almirah of the veranda has been planted by the Investigating Officer just to strengthen the case of the prosecution. It was not recovered in pursuance of any disclosure statement suffered by the appellant. Moreover, such articles are easily available in each and every house. Since the dying declaration is the only piece of evidence, which is otherwise involuntary unreliable and unworthy of credence, the learned trial court has committed a grave error while holding that the prosecution has successfully proved the guilt of the appellant. The conviction as well as the sentence imposed upon the appellant, vide impugned judgment and order of conviction dated 17.04.2002/18.04.2002, are absolutely unjustified and without any substantive evidence and deserves to be set aside. 12. The conviction as well as the sentence imposed upon the appellant, vide impugned judgment and order of conviction dated 17.04.2002/18.04.2002, are absolutely unjustified and without any substantive evidence and deserves to be set aside. 12. Per contra, learned counsel for the State has supported the impugned judgment of conviction and sentence by submitting that the same are in consonance with the evidence available on file and the settled canons of law. The mere fact that PW6 Smt. Sheela, PW7 Dilbagh and PW9 Smt. Kamlesh, did not support the case of the prosecution and have been declared hostile, is itself not fatal to the case of the prosecution. It is further stated that no doubt the subject of the evidentiary value and acceptability of a dying declaration must be approached with caution for the reason that the maker thereof cannot be subjected to cross-examination but corroboration is not the sine qua non for accepting a dying declaration, unless the declaration suffers from any material infirmity. In the case in hand, Smt. Santra was rushed to PGIMS, Rohtak with burn injuries where she was medically treated. Sh. R.K. Sharma, the Chief Judicial Magistrate, Rohtak (PW14), visited PGIMS, Rohtak at the request of the Investigating Officer and after seeking doctor's opinion with regard to the fitness of the patient/injured Smt. Santra, he recorded her statement Ex.PK. The contents thereof were read over and explained by him to her and it was only thereafter, she appended her thumb impression after admitting its contents. There is no illegality or infirmity or any suspicious circumstance surrounding the statement Ex. PK. The medical evidence corroborates the cause of death whereas the motive is also identical as reflected in Ex.PK (dying declaration) as well as in the statement made by Smt. Kamlesh PW9 at the time of registration of the instant case. So, the learned trial court has rightly relied upon the prosecution evidence including the dying declaration to hold the conviction of the appellant as well as to impose sentence upon him. Appeal being devoid of any merits, deserves to be dismissed. 13. We have given an anxious thought to the rival submissions of the learned counsel for the parties and have gone through the evidence. 14. Undeniably, the foundation of conviction and sentence in the instant case is the dying declaration ExPK of Smt. Santra deceased coupled with the medical evidence. Appeal being devoid of any merits, deserves to be dismissed. 13. We have given an anxious thought to the rival submissions of the learned counsel for the parties and have gone through the evidence. 14. Undeniably, the foundation of conviction and sentence in the instant case is the dying declaration ExPK of Smt. Santra deceased coupled with the medical evidence. Smt. Kamlesh PW9, who put the investigation into motion by getting her statement Ex.PJ recorded with the Investigating Officer, did not support the prosecution version and was declared hostile. She is the second wife of Om Parkashappellant. It appears that she has resiled from her statement, which is the basis of the FIR, for the obvious reason to secure her future. Similarly, PW6 Sheela is the sister of the deceased and PW7 Dilbagh is the brother of the appellant. They also did not toe the line of the prosecution for the reasons best known to them or with an intention to save the appellant from the consequences of the commission of murder of Smt. Santra. Smt. Kamlesh PW9 has even gone to the extent by saying that Smt. Santra was goaded by her to implicate Om Parkash so that in case of her survival, he may not beat or thrash her in future. 15. By now, it is pretty settled that a dying declaration, which is voluntary, truthful and is free from any doubts can be the sole basis for convicting the culprit. The Hon'ble Apex Court in Sham Shankar Kankaria vs. State of Maharashtra 2007 (2) SCC 663 after considering a number of cases held that: “dying declaration is the only piece of untested evidence and must like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. This Court has further reiterated that if after careful scrutiny the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it a basis of conviction, even if there is no corroboration. 16. This Court has further reiterated that if after careful scrutiny the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it a basis of conviction, even if there is no corroboration. 16. In case, Bhajju @ Karan Singh vs. State of Madhya Pradesh 2012 (4) SCC 327 , the Hon'ble Supreme Court has observed that a dying declaration is a substantive piece of evidence and conviction of an accused can be based solely on it. To similar effect are observations by the Hon'ble Supreme Court in State of Uttar Pradesh vs. Ram Sagar Yadav and others 1985(1) RCR (criminal) 600. 17. In the present case, the dying declaration of Smt. Santradeceased was recorded by Sh.R.K. Sharma, Chief Judicial Magistrate, Rohtak (PW14). He has deposed in clear terms that on May 24, 2001, ASI Ram Kishan, P.S. Sadar, Rohtak moved an application Ex. PJ/A before him making a request for recording the statement of Smt. Santra. He visited PGIMS, Rohtak, sought the opinion of Dr. Dharmender Sharma regarding the fitness of the patient and finding that Smt. Santra is fit to make a statement, recorded her statement Ex.PK without any addition or omission. He also appended certificate at its foot Ex.PK/1. Again, he obtained the opinion of the doctor on duty, who opined that the patient remained fit during and while making her statement. The report of doctor in this regard is Ex.PK/2. Though, he was subjected to lengthy and probly cross-examination but nothing could be elicited to shatter contents of Ex.PK. The relevant statement/dying declaration of Smt. Santra translated in english runs as under: “Stated that Om Parkash is my husband. Prior he was in service. Now he came on pension. Om Parkash and I gave birth one daughter, who had married and she had two children. Om Parkash is habitual used consuming liquor. After consuming liquor usual. He gave beaten to me. He has second wife namely Kamlesh and she have four children. At about 7 p.m. Om Parkash had used consuming liquor and now he present in his house. After consuming liquor he gave beaten and ask for get out to me from the house. He always asked me for get out from his house when I refuse to obey him. He has second wife namely Kamlesh and she have four children. At about 7 p.m. Om Parkash had used consuming liquor and now he present in his house. After consuming liquor he gave beaten and ask for get out to me from the house. He always asked me for get out from his house when I refuse to obey him. Then Om Parkash sprinkled upon me kerosene oil and set me on fire. Om Parkash sprinkled kerosene oil upon me with the intention of killing me. He set me on fire. Neighbours brought me here after put in a car. My sister Sheela try to save me and put upon me clothes. Many people of the village also present there. I cannot tell their names. Nothing to say.” 18. A perusal of the aforesaid statement reveals that it is definite, unambiguous and specific. It was specifically got incorporated by the deceased that Om Parkash was under the influence of liquor, thrashed her and asked her to get out from his house but when she refused to obey him, he splashed kerosene oil on her and set her on fire with an intention to kill her. It has further been stated by her that she was brought to the hospital by her neighbours in a car. There is also nothing on the record to suggest that dying declaration is tutored or that it was made under some goading or pressure. Rather from the evidence and circumstances, it is evident that the dying declaration Ex.PK was made by its maker voluntarily and there is no reason what to talk of any plausible reason to discard it. 19. In view of the above discussion, we are of the considered view that the learned trial court has rightly concluded that Om Parkash sprinkled kerosene oil on his wife Smt. Santra and set her on fire with an intention to kill her, which ultimately resulted into her demise. We do not find any illegality or impropriety in the impugned judgment of conviction and order of sentence dated 17.04.2002/18.04.2002. Consequently, conviction and sentence are affirmed and appeal being devoid of any merits is dismissed.