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Himachal Pradesh High Court · body

2015 DIGILAW 802 (HP)

Surender Singh v. State of Himachal Pradesh

2015-07-02

RAJIV SHARMA, SURESHWAR THAKUR

body2015
Judgment : Justice Rajiv Sharma, J. This appeal is instituted against the judgment dated 15.7.2013, rendered by the learned Sessions Judge, Sirmaur at Nahan, H.P. in Sessions Trial No. 32-ST/7 of 2012, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Section 302 IPC, was convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year under Section 302 IPC. 2. The case of the prosecution, in a nut shell, is that on 24.5.2012 at about 9 or 9:30 AM when PW-2 Guman Singh, PW-3 Vipin, PW-4 Manoj Kumar and Prem Pal were working in their fields situated near the house of accused, they heard a noise and smoke coming out from the upper storey of the house of accused. They rushed towards his house and found that the accused was walking on the lintel of his house while his mother was taking bath in the bathroom on the lower storey of the house. They opened the door and broke open the window panes so that the smoke could come out. Thereafter, PW-4 Manoj Kumar entered the room and brought Pariksha (deceased) out of the room. She had severe burn injuries on her person and her clothes were also burnt. She was not in a position to speak. Thereafter, she was removed to Rajgarh in the Car of accused and on the way she was shifted to 108 Ambulance which was called from Rajgarh. The Medical Officer, CH Rajgarh, informed the police about the incident. PW-11 HC Islam visited CH Rajgarh and deceased was declared unfit to make statement by the M.O. She was referred to Regional Hospital, Solan by MO, CH Rajgarh. In the meanwhile, brother of deceased PW-1 Hari Dass received information about this occurrence and he alongwith his mother visited Solan hospital and found that the deceased was not in a position to speak. From Regional Hospital, Solan the deceased was referred to IGMC, Shimla. She died on the way to IGMC, Shimla. FIR Ext. PW-1/A was lodged. The post mortem was conducted on the dead body. On completion of the investigation, challan was put up after completing all the codal formalities. 3. From Regional Hospital, Solan the deceased was referred to IGMC, Shimla. She died on the way to IGMC, Shimla. FIR Ext. PW-1/A was lodged. The post mortem was conducted on the dead body. On completion of the investigation, challan was put up after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as 17 witnesses. The accused was also examined under Section 313 Cr.P.C. He has pleaded innocence. The accused has also examined two DWs in defence. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Anoop Chitkara, Advocate for the accused has vehemently argued that the prosecution has failed to prove the case against the accused. On the other hand, Mr. Ramesh Thakur, learned Asstt. Advocate General, appearing on behalf of the State, has supported the judgment of the learned trial Court dated 15.7.2013. 5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully. 6. PW-1 Hari Dass is the brother of deceased Pariksha. She was his younger sister. She was married to accused about 12 years back. On 24.5.2012, Surender informed him on telephone that his sister Pariksha has been burnt and she was taken to Rajgarh. He rang up accused Surender Pal, however, the call was answered by his nephew Kamal Raj who told him that his sister has been referred from Rajgarh to Solan. Thereafter, he alongwith his mother left for Solan and on reaching at Solan hospital, accused, his nephew and Pradhan Madan Singh were present there. When he saw his sister Pariksha, he found that her entire body was burnt. She was not in a position to speak and she was asking for water. From Solan hospital, his sister was referred to IGMC Shimla for further treatment. She died on the way to IGMC, Shimla. The accused used to mal-treat his sister and was giving beatings to his sister. This fact was disclosed to him by his sister as and when she visited their house. His sister Raksha Devi told him that accused Surender gave beatings to his sister and thereafter he put some inflammable substance on her and set her on fire and bolted the room from outside. This fact was disclosed to him by his sister as and when she visited their house. His sister Raksha Devi told him that accused Surender gave beatings to his sister and thereafter he put some inflammable substance on her and set her on fire and bolted the room from outside. Thereafter, Manoj, Guman Singh broke open the door and also the window panes and entered into the room and brought her outside the room. She had suffered severe burn injuries. Prior to the marriage of his sister with accused, the accused was married to Sarla who is serving as JBT teacher but their marriage was dissolved by a decree of divorce. The accused wanted to bring his previous wife back to his house. He lodged FIR Ext. PW-1/A. In his cross-examination, he admitted that they have not lodged any complaint with the Panchayat or Police about the beatings given to his sister. His sister had told them that the accused had established relations with his previous wife. The villagers of the accused person Manoj and Guman Singh etc. disclosed to him about the breaking of the door and pulling out his sister from the room in burnt condition and also setting on fire by the accused by throwing some inflammable material on her person. 7. PW-2 Guman Singh, deposed that on 24.5.2012 at 9 or 9:30 AM, strange noise was heard from the house of accused and smoke was coming out from the bed room of accused. Prem Pal, Birender, Manoj, Amit and Vipin etc. were also working in their fields near the house of accused person and on hearing the noise, all of them rushed towards the house of the accused. At that time, accused Surender was walking on the lintel of his house and his mother was taking bath on the lower storey. They first went to the kitchen of the accused person and found that the gas cylinder was intact. When they went upstairs towards the bed room of the accused, they found the same to be bolted from outside. Accused Surender bolted the door from outside and thereafter, they broke the window panes and there was lot of smoke inside the room. Majoj entered into the room in the first instance and he took out the deceased from the room. At that time, she had severe burn injuries on her person. Accused Surender bolted the door from outside and thereafter, they broke the window panes and there was lot of smoke inside the room. Majoj entered into the room in the first instance and he took out the deceased from the room. At that time, she had severe burn injuries on her person. She was not in a position to speak and her clothes were burnt. They took her to Rajgarh hospital, from where she was referred to Solan and then referred to IGMC, Shimla. She died on the way to IGMC, Shimla. He had heard and seen several times accused quarrelling with his wife under the influence of liquor as he is living in the neighbourhood of accused. The accused had earlier divorced his wife Sarla. The police had taken into possession one head gear (Dhattu), three pieces of broken glass, hair of Pariksha, partly burnt mattress and a dictionary from the bed room of the accused vide memo Ext. PW-2/A. In his cross-examination, he deposed that his fields were situated at a distance of 100 meters away from the house of the accused. The fields of other persons named by him were also situated near his field. His residence was situated at a distance of 200 meters from the house of the accused. The mother of the accused person came on the first floor when they reached there. The bolt of the door was broken but brush was inserted in the place of the bolt. The smoke was coming out from the door as well as through the window. He has denied the suggestion that the door was just closed and the same was not bolted from outside by brush or otherwise. 8. PW-3 Vipin Kumar, deposed that on 24.5.2012 when school children were going to school, at that time he was working in his field. Near his fields other persons were also working in their fields. He reached on the spot and found that smoke was coming out from the house of accused on hearing the noise. He alongwith Guman Singh, Prem Pal, Birender and Manoj also reached on the spot. They reached on the spot and accused Surender was in the courtyard. They could not enter the room as there was thick smoke. Thereafter, they broke open the window panes. He alongwith Guman Singh, Prem Pal, Birender and Manoj also reached on the spot. They reached on the spot and accused Surender was in the courtyard. They could not enter the room as there was thick smoke. Thereafter, they broke open the window panes. In the meantime, Manoj brought Pariksha, wife of the accused outside the room and she was in burnt condition and unconscious. Thereafter, he called ambulance 108. He was declared hostile and cross-examined by the learned Public Prosecutor. He has admitted in his cross-examination that he made statement to the police that on hearing noise and seeing smoke coming out of the house of accused, he alongwith others rushed to the house of accused person. He also admitted that when they checked the gas cylinder in the house of accused, it was found intact. He also admitted that the mother of the accused had shouted to save her daughter-in-law. He also admitted that he alongwith Guman Singh, Birender, Manoj etc. climbed the upstairs. He did not make statement to the police that the door was bolted from outside. He was confronted with portion A to A of statement mark-A, wherein it is so stated. He made the statement to the police that accused was roaming about on the lintel. Volunteered that he had once gone one side and thereafter gone another side. He also admitted that Pariksha was having severe burn injuries and her clothes were completely burnt. He did not make any statement to the police that the accused Surender used to give beatings to the deceased under the influence of liquor. He was confronted with portion B to B of statement mark-A, wherein it is so recorded. In his cross-examination by the learned counsel for the accused, he deposed that the field in which he was working was situated at a distance of 200 meters from the house of the accused. His house was situated after one or two houses from the house of accused Surender. When they reached on the spot, accused Surender and his mother were present on the lintel of the room of ground floor. He also deposed that after breaking the window panes when he saw the accused person, he had black stains on his face and his hands were burnt. When they reached on the spot, accused Surender and his mother were present on the lintel of the room of ground floor. He also deposed that after breaking the window panes when he saw the accused person, he had black stains on his face and his hands were burnt. When he came back breaking the window panes, by that time, Manoj had dragged the deceased outside the room and he had seen the hands of the accused burnt at that time. 9. PW-4 Manoj Kumar deposed that on 24.5.2012, at about 9:00 AM, he alongwith Birender and Prem Pal was working in his fields. On hearing noise and noticing smoke coming out from the house of accused Surender, they rushed towards his house. The mother of the accused was shouting from the lintel of the house to save her daughter-in-law. He had seen accused Surender bolting the door from outside. When they went up on the first floor of accused, by that time, the door of the room was open and the accused was present on the lintel of the house and was moving here and there. Before entering the room, he asked the other person to broke the window panes so that the smoke could come out and when he entered the room, there was thick smoke and he could see the legs of the deceased. Thereafter, he came out and brought a blanket and entered the room and put the blanket on Pariksha and then dragged her out of the room. In the meantime, someone called the ambulance. In his cross-examination, he deposed that the house of the deceased was situated at a distance of about 100 meters from the house of the accused. He saw the accused person closing the door when he was coming towards the house of accused person from the field. When he reached there, the mother of accused was shouting to save her daughter-in-law. 10. PW-5 Raksha Devi is the sister of the deceased. According to her, on 24.5.2012, some person from Kotla Mangan gave information on the mobile of her husband that accused Surender had burnt his sister Pariksha by pouring petrol and she was being brought to Rajgarh for treatment. She alongwith her husband went to Rajgarh hospital. She found that Pariksha had suffered burn injuries and was not in a position to speak. She alongwith her husband went to Rajgarh hospital. She found that Pariksha had suffered burn injuries and was not in a position to speak. On her persistent asking, she signaled towards the accused Surender by looking towards him. She died on way to IGMC hospital, Shimla. 11. PW-6 Sunil Kumar deposed that Pariksha was his sister. On 24.5.2012, when he was present at his home, his cousin Ved Prakash rang him from Rajgarh and informed him that accused Surender had burnt his sister by pouring some inflammable substance on her. She was brought to Rajgarh hospital. She died on way to IGMC hospital, Shimla. 12. PW-8 Kumari Aanchal Chauhan, is the daughter of the deceased. Her mother was burnt but she was not aware as to who had put her on fire. Her father had kept the can of petrol on the second storey of the house on which her mother was set on fire. Her father had asked her to keep the can of petrol in the room in which her mother was burnt. When her mother was burning, her grandmother was shouting to save her. The room was bolted from outside in which her mother was burning. At the time of occurrence, Vipin, Prem Pal, Guman and others had reached on the spot. When her mother was burning, her father was present outside on the lintel. The police had visited the spot and made enquiries from her. 13. PW-14 Dr. Jitender Thakur, has issued MLC Ext. PW-14/A. The police has sought his opinion regarding the fitness of the patient to make statement, however, after his clinical examination, he found that she was unfit to make statement. He gave his opinion vide Ext. PW-14/B. The signatures of the patient could not be obtained on the MLC as the patient was 100% burnt. 14. PW-15 Dr. M.P.Singh, has conducted the post mortem examination alongwith Dr. Ashish Sharma. He issued report Ext. PW-15/A. According to him, the deceased died due to extensive whole body superficial to dermal deep burns leading to hypo-volumnic shock. No poison was detected nor was any inflammable material contents observed. 15. PW-16 C.L.Sharma, has proved report Ext. PW-13/A. According to him, in all the articles, physically and chemically, no poison/inflammable material could be detected in the contents of the same. No poison was detected nor was any inflammable material contents observed. 15. PW-16 C.L.Sharma, has proved report Ext. PW-13/A. According to him, in all the articles, physically and chemically, no poison/inflammable material could be detected in the contents of the same. He also deposed that petroleum is volatile compound as it evaporates immediately and it leaves behind no smell and residue after burning. 16. PW-17 ASI Rajesh Pal, has carried out the investigation. He visited the spot and prepared the site plan. He took photographs Ext. P- 11 and P-12. He lifted Dhattu Ext. P-2, broken piece of glass Ext. P-4, burnt pieces of mattress Ext. P-6, dictionary Ext. P-8, hair Ext. P-10 from the bed room and put them in different parcels. In his cross-examination, he deposed that he did not find any can, tin or plastic on the spot but some plastic material was present. He did not found any residue of plastic can. He did not record the statement of mother and daughter Anchal of accused. The daughter of the accused was not present as she was taken by her maternal Aunt Raksha. He also admitted that none of the witnesses had stated about the presence of Anchal at the spot. The statement of Anchal was recorded on 5.8.2012. 17. The prosecution has relied upon the following circumstances to connect the accused with the charged offence: “(i) That the accused used to maltreat the deceased as he wanted to remarry his previous divorced wife; (ii) That the accused brought petrol and kept the same in the bed room in which the deceased was burnt; (iii) That the accused was seen bolting the door from the outside; (iv) That the accused did not raise any alarm and tried to save the deceased when she was burning; and (v) That the explanation offered by the accused that the deceased committed suicide not probable; (vi) That the accused had also suffered burn injuries on his hands and feet.” 18. Now, as far as maltreatment of the deceased by accused is concerned, it has come in the statement of PW-1 Hari Dass that his sister used to complain about the maltreatment and beatings given to her by the accused as and when she visited their house. Now, as far as maltreatment of the deceased by accused is concerned, it has come in the statement of PW-1 Hari Dass that his sister used to complain about the maltreatment and beatings given to her by the accused as and when she visited their house. PW-2 Guman Singh also deposed that he had heard several times accused quarrelling with his wife under the influence of liquor as he was living in neighbourhood of the accused. PW-4 Manoj Kumar also deposed that he had asked several times accused person to mend his ways but he did not listen to their advise, he also deposed that accused person did not make any attempt to save his wife. PW-5 Raksha Devi has also deposed that the accused used to give beatings to his sister after consuming liquor because he wanted to bring back his first wife to whom he was previously divorced. PW-6 Sunil Kumar has also deposed that the accused used to give beatings to his sister and this fact was disclosed to him by her when he had come on leave in April, 2012. 19. Mr. Anoop Chitkara, Advocate, for the accused has vehemently argued that in case the accused was given beatings to the deceased, the matter should have been reported either to the Panchayat or the Police. The Court can take judicial notice of the fact that generally in matrimonial discords; the parties hesitate to make complaints either to the police or the Panchayat to save their honour. In the FIR Ext. PW-1/A, it is specifically stated that the accused used to harass and torture the deceased. It is duly established from the statements of PW-1 Hari Dass, PW-2 Guman Singh, PW-4 Manoj Kumar, PW-5 Raksha Devi and PW-6 Sunil Kumar that the deceased was maltreated and given beatings by the accused. 20. Now, as far as procurement of the petrol by the accused is concerned, this fact is duly proved by the statement of PW-8 Kumari Anchal. She is the daughter of the deceased. There was no occasion for the PW-8 Kumari Anchal to depose against her father. According to her, her father had told her to keep can of petrol in the room in which her mother was burnt. She has denied the suggestion that the police had told her to make statement regarding keeping of the can. There was no occasion for the PW-8 Kumari Anchal to depose against her father. According to her, her father had told her to keep can of petrol in the room in which her mother was burnt. She has denied the suggestion that the police had told her to make statement regarding keeping of the can. It is true that the statement of Kumari Anchal was recorded after two months, but suggestion was put to the I.O., who has stated that since Kumari Anchal was taken away by her maternal Aunt Raksha, her statement could not be recorded. Merely that the statement of PW-8 Kumari Anchal was not recorded promptly, will not in any way affect her statement made in the Court. 21. The accused has bolted the room from outside as per the statements of PW-2 Guman Singh, PW-4 Manoj Kumar, and PW-8 Kumari Anchal. According to PW-2 Guman Singh, the accused had bolted the door from outside. He has denied the suggestion in his cross-examination that the door was just closed and not bolted from outside. PW-4 Manoj Kumar has infact seen the accused bolting the door from outside. PW-8 Kumari Anchal is the daughter of the accused who has testified that the door of the room was bolted from outside. 22. Now, as far as the statement of DW-2 Amit Kumar is concerned, he was earlier cited as witness of the prosecution. He was given up, being won over and thereafter cited as DW-2 in defence of the accused. There is ample material placed on record to establish that the door was bolted from outside by none else other than the accused. The behavior of the accused was also unusual when PW-2 Guman Singh, PW- 3 Vipin Kumar and PW-4 Manoj Kumar reached on the spot. The accused was moving around on the lintel of his house. He has neither raised any hue and cry and nor made any attempt to save his wife. The defence taken by the accused that due to thick smoke he could not enter the room cannot be believed. The villagers who had reached on the spot had broken window panes and by breaking open the door have entered the room and dragged the deceased out from the room. 23. Mr. Anoop Chitkara, Advocate, for the accused has argued that the accused has also received injuries on hands and feet. The villagers who had reached on the spot had broken window panes and by breaking open the door have entered the room and dragged the deceased out from the room. 23. Mr. Anoop Chitkara, Advocate, for the accused has argued that the accused has also received injuries on hands and feet. His argument cannot be believed that accused received the injuries while saving his wife. PW-4 Manoj Kumar had entered the room and dragged the deceased out. The accused had suffered injuries on his hands and feet while he poured the petrol on his wife and set her ablaze. PW-2 Guman Singh, PW-3 Vipin Kumar and PW-4 Manoj Kumar have also denied that when the door of the room was opened, the accused person had suffered burn injuries as he entered the room to search for keys of the Car. 24. Mr. Anoop Chitkara, Advocate, has also argued that it was a case of suicide. We have scanned the entire evidence and only conclusion which can be safely drawn is that the accused has set his wife ablaze, which led to her death. She had received 100% injuries. The learned counsel for the accused had lastly argued that there was no smell of combustible material found on the parcel sent to chemical examination. It has come in the statement of PW-16 C.L. Sharma that the petroleum, being volatile compound, evaporates immediately and leaves behind no smell and residue after burning. In these circumstances, no smell and residue was found on the parcel sent for chemical examination. The deceased has died due to extensive whole body superficial to dermal deep burns leading to hypo-volumnic shock. 25. Accordingly, there is no merit in this appeal and the same is dismissed.