Ashok Kumar vs State of Haryana

M.L. Singhal, J.

Ashok Kumar (appellant) was tried by Sessions Judge, Sonepat on the charge under Sections 302/304B of Indian Penal Code and vide order dated 10/17.1.1994, he convicted him on each count and sentenced him to undergo imprisonment for life on each count and ordered that both the sentences shall run concurrently. The prosecution case briefly stated is as follows.

Smt. Lalita Devi (d/o Banti Devi widow of Chhankanda Ram) was married to Ashok Kumar on 7.10.1989. She had four sisters and one brother Jagdish. Smt. Lalita Devi was residing with her husband at Panipat. Her husband was greedy and short tempered. He was suspecting her fidelity also. He was laying demand for money on her. Lalita had given birth to a son about 2 months earlier to 27.9.1990 i.e. when the unfortunate incident took place. On the birth of son to her, she brought Rs. 1500/ from her mother. This amount of Rs. 1500/ did not satisfy Ashok Kumar. He demanded that she should bring some more money from her mother. Whenever she demanded money for running the household, he quarrelled with her and gave her beatings. On 27.9.1990, it was Ashtami. After performing puja, she served food to the girls. At about 3 p.m., she asked her husband to bring grocery items, whereupon, he quarrelled with her and gave her beatings. Ashok Kumar quarrelled with her and gave her beatings, took her to the room and bolted the door from inside, sprinkled kerosene on her, lit a match stick and set her afire. Lalita Devi cried on having been set afire. Thereafter, he opened the door and she went out running and he poured water on her. He ran to his mother''s house. Landlady of Ashok Kumar informed Lalita Devi''s mother who took her to the hospital. After the arrival of Lalita Devi in General Hospital, Panipat with burn injuries, Dr. Mahesh Parkash, Medical Officer, General Hospital, Panipat sent ruqa Ex. PF to SHO, PS City, Panipat on 27.9.1990 at about 4.10 p.m. In regard to receipt of ruqa Ex. PF, entry Ex. PF/1 (copy) was made in the Daily Diary Register (DDR) of PS City, Panipat. A VT message was sent to Police Post, Qila Panipat to the effect that Lalita Devi wife of Ashok Kumar was lying admitted in General Hospital, Panipat. On receipt of that VT message from PS City, Panipat, Shri Zile Singh, SI Incharge, Police Post Qila Panipat went to the Police Station, City Panipat along with Constable Sultan Singh and collected ruqa Ex. PF and proceeded to General Hospital, Panipat. There, he found Lalita lying admitted and finding her condition to be serious, he moved application Ex. PG/4 to Chief Judicial Magistrate, Panipat requesting him to arrange to record the statement of Smt. Lalita Devi. Ms. Meenakshi Girdhar, Judicial Magistrate 1st Class, Panipat was deputed to record her statement. She accordingly went to General Hospital, Panipat and made application Ex. PG/1 to Dr. Mahesh Parkash with a view to elicit whether or not Smt. Lalita Devi was fit to make statement. Dr. Mahesh Parkash vide endorsement Ex. PG/2 opined that Lalita was fully conscious and was fit to make statement. Thereafter, Ms. Meenakshi Girdhar, Judicial Magistrate 1st Class, Panipat recorded the statement of Lalita which is Ex. PG/5. After she had recorded statement Ex. PG/5 of Smt. Lalita Devi, the same was read out to Smt. Lalita Devi by her who impressed her right thumb impression thereon at point ''A'' at Ex. PG/5. Smt. Lalita Devi remained fully conscious throughout when Ms. Meenakshi Girdhar, Judicial Magistrate 1st Class, Panipat was recording her statement and to this effect, she appended note on Ex. PG/5 at point ''B'' that the statement had been read out to her and she had impressed her right thumb impression thereon in token of its correctness. During the course when Ms. Meenakshi Girdhar was recording statement of Lalita, Dr. Mahesh Parkash was present and he also appended note Ex. PG/3 to the effect that Smt. Lalita Devi was fit when her statement was being recorded. Statement of Lalita Devi recorded by Ms. Meenakshi Girdhar, Judicial Magistrate 1st Class, Panipat on 27.9.1990 formed the foundation of FIR No. 623 dated 28.9.1990 registered against Ashok Kumar at PS City, Panipat under Section 498A IPC. After the registration of the case against Ashok Kumar accused at PS City, Panipat, the investigation of the case was taken up by SI Zile Singh, Incharge Police Post, Qila Panipat. He reached the situs of crime along with ASI Umed Singh and HC Bhagwan Chand. On the way, Shri Prem Kumar, photographer met him whom he took along and got the spot photographed. Ex. P1 to P8 are the positives and negatives of the situs of crime. SI Zile Singh inspected the situs of crime and prepared rough site plan Ex. PM. He took into possession the burnt clothes of the deceased namely Ex. P9 (Salwar), EX. P10 (Jumper), Ex. P11 (half burnt Bra). He made these clothes into a sealed packet. He took into possession an empty bottle Ex. P12 containing a very little quantity of kerosene emitting smell of kerosene. He took into possession match box Ex P13 containing some match sticks. He made the empty bottle and the match box into a sealed parcel. Seizure memo Ex. PK was prepared in regard to the seizure of the burnt clothes, empty bottle and the match box which was attested by Dr. Vijay Kumar, Girdhari Lal and ASI Umed Singh. He recorded the statements of Dr. Mahesh Parkash etc. on 4.10.1990, he received VT message from Incharge, Police Post, Medical College and Hospital Rohtak that Smt. Lalita Devi had expired in Medical College and Hospital, Rohtak. On receipt of VT message to that effect, SI Zile Singh reached Medical College and Hospital, Rohtak along with HC Ram Chander. He held inquest on the dead body of Smt. Lalita Devi. Inquest report is Ex. PN. Autopsy on the dead body of Smt. Lalita Devi was carried out on 4.10.1990 at 3.50 p.m. by a team of doctors comprising Dr. D.S. Dhankar etc. According to them, death was due to extensive burns leading to shock and its complications which were antemortem in nature and were sufficient to cause death in the ordinary course of nature. After investigation, accused was challaned. At the trial, initially, the accused was charged under Section 302 IPC on 2.4.1991. Afterwards on 11.3.1992, accused was charged in the alternative under Section 304B IPC. Accused Ashok Kumar pleaded not guilty to the charge and claimed trial.

With a view to bring home to the accused the charge levelled against him, the prosecution examined Dr. D.S. Dhankar PW1; SI Kashmiri Lal of PS City, Sonepat PW2; Inspector Ram Kumar, SHO, PS City, Panipat PW3; Ms. Meenakshi Girdhar, Judicial Magistrate 1st Class, Panipat PW 6; Shri Balak Ram, Draftsman, Panipat PW7; Shri Prem Kumar, Photographer PW8; Dr. Mahesh Parkash, Medical Officer, General Hospital, Panipat PW9; Dr. Vijay Pal Khangwal, Demonstrator, Department of Forensic Medicine, Medical College and Hospital, Rohtak PW10; Smt. Banti Devi (mother of Smt. Lalita Devi) PW11; Girdhari Lal PW12; SI Zile Singh, Inspector, Police Post, Qila Panipat PW13. Besides, Constable Joginder Singh PW4; SI Subhash Chander PW5 were examined on affidavits. Smt. Bimla was given up as won over and Dr. Subhash Juneja, SI Virender Kumar, ASI Umed Singh, Dr. Vijay Kumar and Kesar Dass were given up as unnecessary. Report of the Forensic Science Laboratory Ex. PL was tendered into evidence.

Ashok Kumar accused when examined under Section 313 Cr.P.C., denied the imputations appearing in prosecution evidence against him and stated that he is innocent. His wife caught fire accidentally while she was preparing meals on a stove. He tried his best to extinguish the fire. He took her to General Hospital, Panipat and then to Medical College and Hospital, Rohtak and made every effort to save her life. Despite his best efforts, he could not save her. Child born to her died immediately after birth. She continued to remain worried on account of the death of their first child. There was absolutely no quarrel or rancour of any sort between them. Theirs was quite a happy married life. He laid no demand on her. His motherinlaw Banti Devi is quarrelsome type and is a habitual litigant. His sisterinlaw Varsha is not having a smooth married life and is having litigation with her inlaws for the last several years and his motherinlaw Banti Devi is the wire puller so far as that litigation is concerned. Statement alleged to have been made by Smt. Lalita Devi is not spontaneous but the result of tutoring and prompting. No evidence was led in defence. At the conclusion of the trial, Sessions Judge, Sonepat found the charge under Sections 302/304B IPC proved against Ashok Kumar and accordingly convicted and sentenced him as indicated above.

Aggrieved from this conviction and sentence recorded by Sessions Judge, Sonepat against him, Ashok Kumar has knocked the door of this Court through this appeal.

In this appeal, the points that require determination are whether Smt. Lalita Devi was or was not fit to make statement on 27.9.1990 at 7.25 p.m. before Ms. Meenakshi Girdhar, Judicial Magistrate 1st Class, Panipat and further whether statement made by Smt. Lalita Devi before Ms. Meenakshi Girdhar, Judicial Magistrate 1st Class, Panipat was spontaneous or the same was the result of tutoring/prompting by her mother Banti Devi and sister Varsha Rani. Elaborating his submissions on these points, learned defence counsel submitted that she was brought by her mother Banti and sister Varsha to General Hospital, Panipat (Casualty Ward) at about 4 p.m. on 27.9.1990. Dr. Mahesh Parkash, Medical Officer, General Hospital, Panipat examined her on 27.9.1990 at 4 p.m. and found varying degrees of burns on face, neck, anterior part of the chest, abdomen, both eyes, medial side of right arm and left arm totally. He found multiple blisters on face, neck, chest, abdomen, thigh, both palms and hands. He found burns on the perineum also with singeing of scalp hair, eye brows and eye lashes. Percentage of burns was 55 to 60%. Smt. Lalita Devi was conscious. Blood pressure was 98/60 MM of Hg and pulse was 108 per minute. Ms. Meenakshi Girdhar, Judicial Magistrate 1st Class, Panipat PW6 has stated that she recorded the statement of Smt. Lalita Devi on 27.9.1990 at 7.25 p.m. after she had sought opinion of the doctor regarding her fitness to make statement. Doctor gave opinion Ex. PG/2 on her application Ex. PG/1 that she was fully conscious and was fit to make statement. She recorded statement Ex. PG/5 of Smt. Lalita Devi who remained fully conscious throughout the period she was recording her statement. Doctor who gave opinion that she was fit to make statement remained present throughout when she was recording Lalita Devi''s statement and that Doctor appended note Ex. PG/3 to the effect that the patient (Smt. Lalita Devi) remained fully conscious between 7.25 p.m. to 7.50 p.m. i.e. during the period her statement was being recorded. Smt. Lalita Devi was taken to Medical College and Hospital, Rohtak, she was examined by Dr. Vijay Pal Khangwal PW10. He found on 29.9.1990 at 1 a.m. on her examination that there were superficial and deep burns all over the body except the following

"Scalp was spared. Scalp hair were showing singeing. Right hand was partly spared. Both axillary folds were partly spared. Inframammary regions on both sides were spared partly in an area 12.0 cm. x 2.5 cm. Both the things were spared in their lowest third. Both the legs and feet were spared all around. Back was burnt partly along the lateral sides. Perineum was spared partly. The superficial burns were showing scab formation and the peeling of the skin was present at places all over the burnt parts. Burns were approximately 75%."

It was submitted that when Smt. Lalita Devi was having burns to this extent, she could not have been in a position to make statement. Ms. Meenakshi Girdhar, Judicial Magistrate 1st Class, Panipat PW6 has categorically stated that on 27.9.1990 between 7.25 p.m. to 7.50 p.m. when she recorded her statement, she was fully conscious. She recorded her statement after she had obtained the opinion of the doctor who had certified that she was fit to make statement. Ms. Meenakshi Girdhar was quite categoric when she stated about the physical condition of Smt. Lalita Devi that she was fully conscious and the doctor appended note at the foot of her statement that she was fit during the course of her statement. This suggestion was denied by her that at the time when she visited the hospital and recorded the statement of Smt. Lalita Devi, she was not conscious and she was under the effect of some sedative. She stated that at the time when she recorded the statement of Smt. Lalita Devi, none else was present other than the doctor. She denied the suggestion that either her mother or her sister was present along with other relations at the bedside when she recorded the statement of Smt. Lalita Devi. She affixed her right thumb impression on her statement. It is in evidence that her right hand was partly spared by burns. In Surinder Kumar and another v. State of Haryana, 1992(3) RCR (Crl.) 333 : 1992(2) All India Criminal Law Reporter 42 , their Lordships of the Hon''ble Supreme Court observed that where a dying declaration is recorded by a judicial Magistrate and the doctor has certified that the patient remained conscious during the period her/his statement was recorded and the Judicial Magistrate has also recorded a certificate that the statement of the patient was recorded by him and it contained true version of the statement and the patient had thumbmarked the same, no infirmity can be said to be there attending the recording of the dying declaration by the Magistrate and such dying declaration should inspire confidence in the court''s mind.

In Gurbachan Singh v. State of Haryana, 1996(2) RCR (Crl.) 723 : 1996(3) All India Criminal Law Reporter 615 , it was held that where a dying declaration was recorded by a Judicial Magistrate and there is an endorsement by the doctor that when dying declaration was recorded, he was present throughout and the wife remained conscious and fit till the end of the statement recorded by the Judicial Magistrate and the Judicial Magistrate also attested the said statement, dying declaration should be believed.

In Gurbachan Singh''s case (supra), "Smt. Jasbir Kaur (wife) had 100% burns and still the dying declaration was believed. Little sooti carbon particles were seen in the trachea. Right and left lungs were congested. Burn injury was present on abdominal wall while liver was pale and spleen was congested. Kidneys were congested. Extensive burn injuries superficial to deep were present all over the body sparing only partial soles of both the feet. Blackening was present at various places. Both the limbs, upper and lower, were partially flexed. Arms were somewhat flexed. Fingers of both the hands were fixed like claws." Still she was found to be conscious when dying declaration was made by her before the Judicial Magistrate.

Dying declaration is nothing but a statement written or oral made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. Such statement is admissible under Section 32 of the Indian Evidence Act. Evidentiary value or weight that has to be attached necessarily depends upon the facts and circumstances of each case. Since the maker of the dying declaration is not before the court so that he/she could be crossexamined, dying declaration requires closer and conscious scrutiny by the court before the same is accepted.

While weighing the genuineness or otherwise of the dying declaration, the court has to be on its guard that the statement of the deceased was not result of either tutoring, prompting or a product of imagination and the court must be further satisfied that the deceased was in a fit state of mind. In Paniben v. State of Gujarat, 1992(3) RCR (Crl.) 552 : 1992(1) Criminal Courts'' Judgements 421 , their Lordships of the Hon''ble Supreme Court observed that once the court is satisfied that the declaration was true and voluntary, undoubtedly it can base conviction thereon without any further corroboration. In Mafabhai Nagarbhai Rawal v. State of Gujarat, 1992(2) Criminal Courts'' Judgments 284, their Lordships of the Hon''ble Supreme Court observed that dying declaration recorded by the doctor could not be rejected. It was for the doctor to see whether the deceased was in a condition to make statement. In Smt. Kamlesh v. State of Haryana, 1990(1) RCR 85 , a Division Bench of this court held that the dying declaration made by the patient before a doctor who had no enmity or interest in any party, should be believed and conviction upheld. In this case also, Ms. Meenakshi Girdhar, Judicial Magistrate 1st Class, Panipat had no animus against the accused. Dr. Mahesh Parkash, Medical Officer, General Hospital, Panipat PW equally had no animus against the accused. Dying declaration was recorded shortly after Smt. Lalita Devi had been set afire and, therefore, dying declaration has to be given greater credence. We would have insisted upon corrobation to the dying declaration if it had been made not on 27.9.1990 but afterwards. Smt. Banti Devi, PW who has gone against her soninlaw is not shown to be having any animus against him. Why should she have said that Smt. Bimla came to her house; told her and her daughter Varsha that Smt. Lalita Devi was burning at her house and they found Lalita Devi afire when they reached her house and Smt. Lalita Devi told them that she had been set on fire by Ashok Kumar.

Smt. Lalita Devi was married on 7.10.1989. She met her sad end on 4.10.1990 on account of sustaining burns on 27.9.1990. According to Ashok Kumar, she was preparing meals on a stove and she accidentally caught fire because of stove burst. He tried his best to extinguish fire and thereafter took her to General Hospital, Panipat and thereafter to Medical College and Hospital, Rohtak and he made every effort to save her life but to no effect. It was submitted that statement Ex. PG/5 was not made by Smt. Lalita Devi on her own but the same was the result of tutoring and prompting by her mother or sister. If he had set her on fire and she had not caught fire accidentally due to stove burst, he would not have poured water on her with a view to extinguish fire. It was submitted that he had no intention to commit the murder of his wife. Answer to this submission can be had in Bandru Palli v. State of Andhra Pradesh, 1975 SCC (Criminal) 84 where it was observed by their Lordships of the Hon''ble Supreme Court that the contention of the learned counsel for the appellant that the appellant had no intention to commit the murder of the deceased and he could not therefore be convicted under Section 302 IPC in view of the circumstances that the appellant had tried to put out fire, is impossible to be accepted because if the appellant had set afire the deceased after accused No. 6 had poured kerosene on his body, there cannot be any doubt that the intention of the appellant was to kill the deceased." Intention that matters is before she was set ablaze. Pouring water after she had been set afire will not cure the mischief he had done nor will it dilute the mischief he had done.

It was submitted by the learned defence counsel that there is delay in the registration of the first information report which took place on 28.9.1990. According to the prosecution, Smt. Lalita Devi was set afire at about 3 p.m. Matter could be reported to the police soon thereafter by the landlady Smt. Bimla or at any rate either by Varsha Rani or Smt. Banti Devi. Smt. Bimla was only a landlady qua Ashok Kumar and his wife. She was absolutely unconcerned so far as the reporting of this incident to the police is concerned. She was not related to Smt. Lalita Devi. Why should she have taken it upon herself to report the matter to the police and incur the wrath of Ashok Kumar. Matter, of course, could have been reported by Smt. Banti Devi or Varsha Rani but they were the only persons who were to attend on the injured. They took her to the General Hospital, Panipat and, thereafter they took her to Medical College and Hospital, Rohtak. It is true that when Smt. Lalita Devi was taken to General Hospital, Panipat, police station fell on the way. If Lalita Devi or Varsha Rani had whiled away time in the reporting of the matter to the police at the police station, the condition of Smt. Lalita Devi would have worsened. First anxiety of kith and kin is to provide medical aid to the injured and not to report the matter to the police. Ms. Meenakshi Girdhar, Judicial Magistrate 1st Class, Panipat recorded statement Ex. PG/5 of Smt. Lalita Devi at 7.25 7.50 p.m. It took 34 hours for Smt. Lalita Devi to be taken to the hospital; the doctor informing the police about the arrival of Smt. Lalita Devi with burns, SI Zile Singh reaching the Magistrate on receipt of VT message from PS City, Panipat regarding the admission of Smt. Lalita Devi in General Hospital, Panipat; in making application to the Magistrate for the recording of her statement, in the Magistrate''s reaching the General Hospital and making application to the Doctor whether she was fit to make statement, in doctor''s giving that opinion and the Magistrate''s commencing to record her statement. In our opinion, there is no delay in the first version taking its birth. First version took its birth at 7.25 7.50 p.m. in the statement ex. PG/5 recorded by Ms. Meenakshi Girdhar, Judicial Magistrate 1st Class, Panipat.

Nonproduction of Smt. Bimla by the prosecution cannot induce us to draw an inference against the prosecution because if she had been produced either she would have stated that she had not witnessed the occurrence or she would have stated that Smt. Lalita Devi caught fire due to stove burst. Smt. Bimla could equally be produced by the accused also. If she had the intention to set the law in motion, she would have reported the matter to the police. Fact that she stayed away shows that she did not want to depose either in favour of the prosecution or in favour of the accused.

Smt. Banti Devi PW 11 stated that her daughter Smt. Lalita Devi was married to Ashok Kumar in the year 1989. She gave dowry befitting her status and financial capacity. She bore the expense of delivery of Smt. Lalita Devi. Ashok Kumar used to beat Smt. Lalita Devi often. He used to ask her to bring money from her mother. It was submitted by the learned defence counsel that Smt. Banti Devi is herself very poor earning Rs. 800900 per month. It is unbelievable that she gave Rs. 1500/ to Ashok Kumar at the time of delivery. It is unbelievable that when Ashok Kumar knew of her motherinlaw''s poor financial position, he would still lay demand upon his wife. Assuming that Smt. Lalita Devi was leading a happy married life and she was not being harassed or maltreated by Ashok Kumar, it leaves a question mark, why her unnatural death and that too after a year of her marriage in the house of her husband ? Ashok Kumar and Lalita Devi were the only persons putting up together. It could either be that Lalita Devi was set afire by Ashok Kumar or she caught fire due to stove burst. Ashok Kumar took up specific plea that she caught fire accidentally while she was preparing meals due to stove burst.

It is true that in a criminal case, it always lies upon the prosecution to prove every facts essential to prove the charge against the accused. It is equally true that where an accused takes up a specific plea saying that he is innocent, he must try to establish that plea. He is, however, not required to establish that plea with the same amount of certainty with which the prosecution is required to prove every essential fact to bring home to the accused the charge levelled against him. In this case, there is statement of Smt. Lalita Devi duly recorded by a Magistrate and certified by a doctor as to that she was fully conscious during the course she made statement. Statement Ex. PG/5 made by Lalita Devi which acquired the status of dying declaration after her death is corroborated by what Smt. Banti Devi has stated. Dying declaration, if believed even if not corroborated, is sufficient to entail conviction. Corroboration to a dying declaration is required only as a rule of caution. Smt. Banti Devi has stated that on 27.9.1990 at about 3.30 p.m., Smt. Bimla came to her house and informed her that Smt. Lalita Devi was burning at her house. She ran towards the house of Smt. Lalita Devi and found that Smt. Lalita Devi was afire. Her daughter Varsha Rani was also with her at that time. Smt. Lalita Devi was conscious at that time. She informed them that Ashok Kumar had demanded Rs. 500/ and on her inability to fulfil his demand, he poured kerosene on her and set her ablaze. It was submitted by the learned defence counsel that the fact that Smt. Lalita Devi told her mother that she had been set afire by Ashok Kumar, does not find mention in the dying declaration and, therefore, this fact should not weigh with the court why Smt. Bimla informed her mother if she had not been set afire by her husband Ashok Kumar ? It is true that this fact does not find mention in the dying declaration. In the dying declaration, this fact finds mention that the landlady (Smt. Bimla) informed her mother Smt. Banti Devi who brought her to the Hospital. If the landlady had informed her mother that she had caught fire due to stove burst, that would have been end of the matter and nothing further. Landlady must have informed her mother about Ashok Kumar having set his wife ablaze.

In our opinion, it was out and out a murder committed by Ashok Kumar. It could be either murder or dowry death. It could not be both murder and dowry death. Learned Sessions Judge could have convicted Ashok Kumar either under Section 302 IPC if he had found that it was murder. He could have convicted him under Section 304B IPC if he had found that it was a "dowry death". He could not have held the death of Smt. Lalita Devi to be both murder and dowry death. He could not have convicted Ashok Kumar both under Sections 302 and 304B IPC. He should have either convicted him under Section 302 IPC if it was viewed as murder or 304B IPC if it was viewed as "dowry death". Sessions Judge has recorded conviction twice over terming it as both murder and dowry death and has passed two sentences viz. one for murder and the other for dowry death. Sessions Judge should have appreciated that either it was murder or it was dowry death. Sessions Judge has displayed lack of knowledge of the basic principles of criminal law i.e. he ought to have known that either there can be conviction under Section 302 IPC or under Section 304B IPC if there is no proof that it was a case of murder.

For the reasons given above, this criminal Appeal fails so far as the conviction and sentence passed upon the accused under Section 302 IPC by the Sessions Judge is concerned. Conviction and sentence passed upon Ashok Kumar appellant under Section 304B IPC was absolutely uncalled for, unwarranted and illegal and, therefore, the same is set aside.