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2016 DIGILAW 551 (HP)

State of Himachal Pradesh v. Bhagat Ram

2016-04-25

RAJIV SHARMA, VIVEK SINGH THAKUR

body2016
JUDGMENT : Rajiv Sharma, J: The State has come in appeal against Judgment dated 26.3.2008 rendered by the learned Additional Sessions Judge, Fast Track Court, Kullu, Himachal Pradesh in Sessions Trial No. 26/07, whereby respondent-accused (hereinafter referred to as 'accused’ for convenience sake), who was charged with and tried for offence under Sections 302 and 498A IPC, has been acquitted. 2. Case of the prosecution, in a nutshell, is that the complainant Amar Chand was the resident of village Koli-Behar. He was a carpenter. Deceased Nirmala was his sister. Her marriage was solemnised with accused Bhagat Ram about 11 years back in accordance with local customs. A son and a daughter were born out of the wedlock. On 23.1.2007, during night time, complainant came to know that Nirmala had been admitted in Kullu hospital in serious condition. He alongwith his mother went to Kullu hospital. His sister had sustained burn injuries. She was unconscious. Both of them remained in the hospital throughout the night. His sister regained consciousness at about 8 AM in the morning. On questioning, she disclosed to them that on 23.1.2007, at 7.00 PM (sic. 7.00 AM), her husband Bhagat Ram had sprinkled kerosene on her person and thereafter she was set on fire. Deceased Nirmala also disclosed that at the relevant time, her two children were present in the house. Her husband used to take liquor and under the influence of liquor he used to administer them beatings. His sister had sustained burn injuries on her face, abdomen, back, both hands and legs. FIR was lodged. Partially burnt clothes of Nirmala were taken into possession by the police. Nirmala succumbed to burn injuries in the hospital on 6.2.2007. She was subjected to post-mortem examination by Dr. Paljor. Sealed parcels were deposited with police Malkhana Kullu by the police from where same were sent to FSL Junga. As per report, traces of kerosene were found on the pillow, clothes and hair of deceased. Investigation was completed. Challan was put in the Court after completing all the codal formalities. 3. Prosecution has examined as many as 11 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. He stated that he did not set his wife on fire. He was fetching water from tap outside the house. He heard cries of his son. He rushed inside the kitchen. 3. Prosecution has examined as many as 11 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. He stated that he did not set his wife on fire. He was fetching water from tap outside the house. He heard cries of his son. He rushed inside the kitchen. He extinguished the fire on the person of his wife with pillow. He asked his son Harish to inform his sister about the incident. One witness was examined from the defence side. Learned trial Court acquitted the accused. Hence, this appeal. 4. Mr. Neeraj K. Sharma, Deputy Advocate General has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. Arun Sehgal, Advocate, has strongly argued that the prosecution has failed to prove case against accused. 6. We have heard the learned counsel for the parties and also gone through the record carefully. 7. PW-1 Dr. Paljor, Senior Medical Officer, testified that on 23.1.2007 Nirmala was admitted in the hospital with history of having burnt with stove while cooking. She was subjected to medical examination by him. He noticed burn injuries over abdomen, fore arms, face and part of both inner aspect of thigh. According to him, deceased died due to septicemia and shock. He prepared post-mortem report, Ext. PB. He also admitted in the cross-examination that the burn injuries were not present on backside of the body. He also admitted that he did not mention in the MLC that smell of kerosene was observed on the person of Nirmala. He admitted that if kerosene is poured while sitting, kerosene will spread over whole of the body. He admitted that the burn injuries can be caused if a person sits near a kerosene stove and catches fire. 8. PW-2 Amar Chand is the brother of the deceased. According to him, marriage of deceased and accused was solemnised about 10 years back. On 23.1.2007, he received a telephone message to the effect that his sister Nirmala had been admitted at Kullu hospital and she was suffering from stomachache. He alongwith his younger brother came to Kullu Hospital. His sister had been admitted in the hospital with burn injuries. She was not able to speak. His brother had also reached at the hospital. They stayed in the hospital throughout the night. He alongwith his younger brother came to Kullu Hospital. His sister had been admitted in the hospital with burn injuries. She was not able to speak. His brother had also reached at the hospital. They stayed in the hospital throughout the night. She regained consciousness in the morning at about 8 o’clock. Nirmala disclosed to his mother Pikli Devi in his presence that accused Bhagat Ram had administered beatings to her and thereafter kerosene oil was poured on her body and she was set on fire by the accused. She also disclosed to him and his mother that her son Harish and daughter Nisha were also present in the house when she was burnt. She also disclosed that that accused used to administer her beatings under the influence of liquor. Deceased had suffered burn injuries on her face, hands, abdomen and part of legs. She was not able to speak. He went to the Police Station and reported the matter to the police, on the basis of which FIR was registered. His sister also disclosed in the hospital that the accused demanded Rs.50/- from her and on her refusal to pay Rs.50/- she was subjected to beatings by him. His sister also disclosed that she was dragged to the kitchen by the accused and set on fire. In his cross-examination, he admitted that he reached hospital at 9 AM. Accused was present there. Nirmala talked to his mother. He lodged FIR on 24.1.2007 at 8 AM. 9. PW-3 Sita Devi is the sister-in-law of deceased. As per her, marriage of Nirmala was solemnised with accused Bhagat Ram. Nirmala used to visit their house often and she used to state that she was being subjected to beatings and maltreatment by her husband under the influence of liquor. Accused used to take Nirmala back to his house from their house by threatening that either he would commit suicide or he would cause accident of his three-wheeler in the event of her refusal to return to his house. She had been obeying the dictates of her husband. On 23.1.2007, a telephonic message was received by them that Nirmala had been admitted to the hospital at Kullu and that she was suffering from stomach-ache and was serious. Her husband and her mother-in-law went to Kullu Hospital. She came to the hospital in the morning. She had been obeying the dictates of her husband. On 23.1.2007, a telephonic message was received by them that Nirmala had been admitted to the hospital at Kullu and that she was suffering from stomach-ache and was serious. Her husband and her mother-in-law went to Kullu Hospital. She came to the hospital in the morning. Nirmala disclosed to her, her husband and her mother-in-law that kerosene oil had been poured on her body by accused and thereafter she was set on fire by him in the kitchen. Nirmala had also disclosed to them that accused was demanding money from her to purchase liquor. In her cross-examination, she admitted that her statement was recorded by the police. Statement of Nirmala was recorded on 26.1.2007 at about 10/10.30 AM. Doctor was not present when statement was recorded by the police. She also admitted that Nirmala had disclosed that accused Bhagat Ram had extinguished fire on her person. 10. PW-5 Vidya Devi deposed that she worked as a maid servant. She lived near the house of accused. During this year about six months back at 7.00 PM, she was cooking meals in her house. Harish, son of accused came to her house and stated that his mother had got burnt and as such she should come to his house. She found Nirmala with burn injuries on her person lying in the kitchen. Shirt of Nirmala had been burnt and she wrapped shawl on her person. Clothes of Nirmala were emitting kerosene oil smell. Accused brought Nirmala to hospital on his back. She accompanied them to road and then returned back. In her crossexamination, she admitted that she has seen burn injury on the hands of the accused. She also admitted that Nirmala was having cordial relations with accused. 11. PW-10 Harish is the son of deceased. He was 11 years of age at the time of recording his evidence without oath. According to him, Nirmala was his mother. Accused was his father. About one year back, he was playing with his sister in the verandah of the house. Mother was cooking meals in the kitchen. Father had brought meat. His mother was cooking meat in the kitchen. He heard noise. He went near the door of kitchen and found that his mother had caught fire and he called his father. His father was present near water tap outside the house. Mother was cooking meals in the kitchen. Father had brought meat. His mother was cooking meat in the kitchen. He heard noise. He went near the door of kitchen and found that his mother had caught fire and he called his father. His father was present near water tap outside the house. His father tried to extinguish the fire with the aid of pillow. He threw water on the person of his mother. His father brought mother to the hospital on his back. His father was weeping. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied the suggestion that money was demanded by his father from the mother. He also denied that father picked up quarrel with his mother and that she was dragged to kitchen by his father. He denied that his mother raised hue and cry and his father had come out of the kitchen to fetch water from tap located outside the house. He admitted that he went inside the kitchen and poured water from a can on the person of his mother. He also admitted that father came inside kitchen and tried to extinguish fire. He also admitted that his father tried to remove clothes from the person of his mother and also asked him to call his aunt. 12. PW-11 SI Mahesh Kumar deposed that he visited the spot. Site plan was prepared. Clothes of deceased were taken into possession. On 26.1.2007, he visited the Regional Hospital, Kullu. Nirmala died in the hospital on 6.2.2007. She was subjected to post-mortem examination. In his cross-examination, he has admitted that he had reached the Regional Hospital, Kullu during day time on 26.1.2007. He had obtained the opinion of MO Regional Hospital, Kullu before recording the statement of Nirmala. He did not remember the name of the medical officer from whom he had obtained the opinion. He admitted that medical officer is present at Regional Hospital, Kullu around the clock. He admitted that there was a court complex situate near Regional Hospital, Kullu. 13. DW-1 Dorje Ram SHO, Police Station, Jogindernagar deposed that he was posted as SI at Police Station, Kullu from August, 2006 to November 2007. On 24.1.2007, he had moved an application before the MO for MLC of Nirmala Devi. He proved Ext. DA. 14. Mr. Neeraj K. Sharma, Deputy Advocate General, has placed strong reliance upon the dying declaration Ext. DW-1 Dorje Ram SHO, Police Station, Jogindernagar deposed that he was posted as SI at Police Station, Kullu from August, 2006 to November 2007. On 24.1.2007, he had moved an application before the MO for MLC of Nirmala Devi. He proved Ext. DA. 14. Mr. Neeraj K. Sharma, Deputy Advocate General, has placed strong reliance upon the dying declaration Ext. PJ. Ext. PJ is not signed by the deceased. It is dated 26.1.2007. PW-11 Mahesh Kumar, in his cross-examination deposed that he has recorded the statement of the deceased on 26.1.2007. He had obtained opinion of the MO, Regional Hospital. However, he could not recollect name of the MO from whom he had obtained opinion before recording statement of Nirmala. He also admitted that MO is present in the Regional Hospital Kullu around the clock. In case he had obtained opinion, it could have been placed on record by the prosecution. Deceased was admitted to the hospital on 23.1.2007. Her statement was not recorded on 23, 24 or 25.1.2007. PW-2 Amar Chand has deposed that the deceased has told his mother and him on 24.1.2007 that the accused put her on fire. PW-3 Sita Devi also deposed that the deceased had told on 24.1.2007 that she was set on fire by the accused in the kitchen. In fact, DW-1, Dorje Ram on 24.1.2007 had moved an application to MO seeking opinion, whether Nirmala was fit to make statement. This further has been proved vide Ext. DA. Doctor had given opinion that patient Nirmala was not fit to give statement on 24.1.2007. Thus, the statement made by PW-2 Amar Chand and PW-3 Sita Dev that the deceased has told them that the accused has put her on fire cannot be believed. Doctor has also put endorsement that the deceased was not fit to make statement. Prosecution case has not been supported by PW-10 Harish, son of deceased. According to him, he was playing outside verandah. Mother was cooking meals in the kitchen. He heard noise. He went near the door and saw that his mother had caught fire. He called his father. He was outside near water tap. He tried to extinguish fire with the aid of pillow. He threw water on the person of mother. PW-3 Sita Devi has also deposed that Nirmala disclosed to her that Bhagat Ram had extinguished fire with the aid of water. He called his father. He was outside near water tap. He tried to extinguish fire with the aid of pillow. He threw water on the person of mother. PW-3 Sita Devi has also deposed that Nirmala disclosed to her that Bhagat Ram had extinguished fire with the aid of water. PW-5 Vidya Devi has also deposed in crossexamination that she has seen burn injury on the hands of accused Bhagat Ram. PW-10 Harish has also deposed that father has taken his mother to the hospital on his back and was weeping. Deceased has received burn injuries as per postmortem report Ext. PB, over forearms, legs and inner aspect of thighs. In his cross-examination, PW-1 Dr. Paljor admitted that if kerosene is poured from head side it would spread on whole of the body. If that is so, she would have received burn injury all over the body. She has received injuries only on front portion of her body. 15. Thus, the learned trial Court has come to a right conclusion that the possibility of deceased getting burn injuries accidentally while sitting near kerosene stove can also not be ruled out. PW-10 Harish has denied specifically that he had been tutored by his grand-mother to depose falsely in the Court. 16. In view of the discussion and analysis made herein above, the appeal has no merit and the same is dismissed. Bail bonds of accused are discharged. All pending applications are also disposed of.