Chaman Lal vs State of Punjab

Harphul Singh Brar, J.—This is an appeal against the judgment/order dated 11-5-1994 of Sessions Judge, Kapurthala vide which he has convicted Chaman Lal, appellant, u/s 302, IPC and has sentenced him to undergo imprisonment for life and to pay a fine of Rs. 200/ in default of payment of fine he was further ordered to undergo R.I. for three months.

Brief facts of the case are that upon receipt of a wireless message from Christian Medical College Hospital, Ludhiana regarding the admission of Joginder Kaur (since deceased) wife of the accused in the hospital with burn injuries, ASI Raj Kumar reached the hospital and recorded the statement Ex. PE of Joginder Kaur, which, according to PW 5 H.C. Gurdial Singh (HC Gurdial Singh was produced at the trial as ASI Raj Kumar had died) who accompanied the ASI and had seen him signing the statement Ex. P.E. of Joginder Kaur which was recorded by ASI and read over to her and in token of its correctness she affixed for thumb impression of her right foot as her fingers and thumbs of her hands had been burnt. Joginder Kaur gave her statement to the ASI in Constable Gurdial Singh''s presence. The statement of Joginder Kaur reads as under:

I am a resident of Mohalla Gobindapura, Phagwara. I was married about 10 years back with Chaman Lal s/o Bhagat Ram r/o Mohalla Gobindpura, Phagwara. I have two sons. My elder son is about 5 years old and the other 6 months old. My husband is addicted to drinking and he had gone to Dubai. He used to come to India and go back (to Dubai). He had returned from Dubai about 3/4 months back. He used to harass me after taking liquor. I used to inform my brother Mangu Ram s/o Dharma Ram, Caste Adharmi, r/o Bara Rurka, P.S. Goraya about his harassing me and he used to send me back after advising me. About 4/5 days back, I informed my brother Mangu Ram above-said that he was harassing me. He had come to see me on 17-6-1991. At about 5.30 p.m. I was working at my house. My husband came from outside and he poured kerosene oil lying in the can lying near on me and put me on fire. I raised raula for my safety. At this, my brother Mangu Ram and other persons of Mohalla gathered there. They extinguished the fire. Much of my body and hands were burnt with fire. The neighbourers at first got admitted me in a Private Khosla Hospital. Thereafter they got me admitted in Civil Hospital at Phagwara and after that in C.M.C. Ludhiana, where my statement is being recorded. My husband poured kerosene oil on me and set me on fire. My brother Mangu Ram has witnessed the whole occurrence. The cause of grudge is that I used to restrain (my husband) from taking liquor. 1 am a complainant. Action may be taken.

On the basis of the above statement, a case u/s 307 was registered against the appellant, Joginder Kaur died in the C.M.C. Hospital, Ludhiana on 21 -6-1991. After that the offence was changed from Section 307, IPC to Section 302, IPC. Inquest report was prepared and the dead body of Joginder Kaur was to post mortem examination. The accused was arrested subjected to post mortem examination. The accused was arrested and after necessary investigation he was challenged u/s 302, IPC and the case was committed to Sessions for trial. The Sessions Judge tried the appellant and convicted and sentenced him as stated above.

In order to bring home guilt to the accused, the prosecution examined H.C. Amar Nath, PW 1, Dr. H. Tongbram, PW 2, Dr. I.P.S. Chhabra, PW 3, Mangu Ram, PW 4, H.C. Gurdial Singh, PW 5 and Tulshi Ram, Draftsman PW 6. The remaining witnesses were given up as unnecessary. ASI Raj Kumar who had recorded the statement of Joginder Kaur had died and the prosecution witness was, thus, closed.

In a statement u/s 313, Cr.P. C., the accused admitted that Joginder Kaur was the sister of Mangu Ram and she was married with him about ten years prior to the occurrence and from their wedlock, two children were born. All the remaining allegations of the prosecution were denied. The accused took up the followjng plea:

I am innocent, I had very cordial relations with my wife Smt. Joginder Kaur. She caught fire accidently in the kitchen while cooking meals. Mangu Ram was not present. I tried to extinguish the fire and in that process I received burns injuries. I immediately took her to the civil hospital, Phagwara and from there to C.M.C. Ludhiana to provide best treatment to her but she could not survive. Other residents of my mohalla were also with me.

PW. 1, Amar Nath, H.C. deposed at trial that he was posted in C.M.C. Hospital as Incharge of Police Post. Joginder Kaur was admitted in the hospital on 17-6-1991 and he had sent the wireless message regarding admission of Joginder Kaur, deceased, as soon as he had received the intimation.

Dr. H. Tongbram of C.M.C. Hospital, Ludhiana, PW 2, has deposed at the trial that on 17-6-1991 at 8.37 p.m. Joginder Kaur was admitted in the C.M.C. Hospital, Ludhiana with 98% burns. The intimation, according to the doctor, was sent to the police regarding her admission and she was given treatment and ultimately she expired on 21-6-1991 at 4.15 p.m. Her injury statement was Ex. P.A. This witness further deposed that her injuries were dangerous to life. He further stated that on 19-6-1991 on the police request Ex. PB, he made endorsement Ex.PB/1 to the effect that Joginder Kaur was fit to make statement at 5 p.m. after examining her. After her death, the witness sent the intimation to the police.

Dr. I.P.S. Chhabra, PW 3 deposed that on 22-6-1991 at 12.55 p.m. he conducted the postmortem examination on the dead body of Joginder Kaur at Civil Hospital, Ludhiana. He found the following injuries on her person:

Superficial to deep infected burns on the whole body except sole of the feet and half doreem of both the feet. Scalp, axilliary and Inguingal hairs were burnt.

On exploration, the brain was congested and having pus. Both lungs on out section showed the pus.

The liver, spleen and kidneys were congested. Stomach contained about 50 cc of semi digested food.

In his opinion, the death was due to extensive infected burns about 98% and those burns were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. Ex.PC is the carbon copy of the post mortem report. Ex. P C/1 is the inquest report and Ex.PC/2 is the police request for post-mortem examination while Ex.PC/3 are the pictorial diagrams showing the seats of the injuries.

PW 4, Mangu Ram, is alleged to be the ocular witness of the occurrence.

Investigating Officer, ASI Raj Kumar had died. Shri Gurdial Singh, H.C. PW 5 identified the handwriting and signatures of Raj Kumar ASI on various documents. He deposed at the trial that on receipt of wireless message he accompanied ASI Raj Kumar to C.M.C. Hospital, Ludhiana where vide application Ex.PB. the opinion of the doctor was obtained vide endorsement Ex. PB/1 to the effect that the injured was fit to make statement, and Raj Kumar recorded her statement Ex.PE which was read over to Joginder Kaur and in token of its correctness, the thumb impression and thumbs of her hands were burnt. This witness further stated that Joginder Kaur made her statement in his presence and it was correctly recorded by the ASI. He further stated that Joginder Kaur was in her senses at that time. He also identified the signatures of Raj Kumar ASI on the statement Ex.PE on the basis of which formal FIR Ex.PE/2 was recorded by Shri Onkar Dutt, ASI. The special report was received by the Ilaqa Magistrate on 20-6-1991 vide endorsement Ex. PE/4. In his presence, Raj Kumar ASI took into possession the plastic cane and the match box from the spot vide memo. Ex.PD attested by him and Manu Ram. The ASI also prepared the rough site plan Ex. PH with correct marginal notes and he also recorded the statement of the witnesses. He also stated that on 22-6-1991, the offence u/s 302, IPC was added after the death of Joginder Kaur, and the accused was arrested by Raj Kumar in his presence on 23-6-1991.

The learned counsel for the appellant has vehemently argued that the presence of Mangu Ram, PW4 was doubtful at the time of occurrence and dying declaration alleged to have been made by the deceased Joginder Kaur is not reliable. He further submits that there was a delay of about 50 hours in lodging the F.I.R. and no kerosene was found in any of the reports of the doctors. He further submits that the injuries on the body of the accused show that the deceased got fire accidently and the accused tried to save her and in that process he suffered the injuries on his person. (It may be noted here that a Criminal Misc. Application was filed on behalf of the applicant in which it was stated that the paper book containing the record of this Appeal supplied to the counsel for the appellant did not contain the report dated 2 0-8-1991 submitted by the Superintendent Sub Jail Phagwara to the Sessions Judge, Kapurthala which was specifically sought by the Sessions Judge. It is mentioned in this application that the said report is contained at page No. 36 in the record of the learned trial Court. The said report is in vernacular and has a very important bearing on the just and proper decision of the appeal. A copy of the report was annexed as Annexure PX . It was ultimately prayed in the application that the translated copy of the report Ex.PX may be allowed to be placed on record.

On 5-12-1996, we had ordered that this application be heard with the main case.)

At this stage we have seen the original record of Superintendent, Sub Jail Phagwara submitted by him on the basis of an order dated 17-8-1991 of the learned District and Sessions Judge, Kapurthala. After going through this report, we find that it is relevant for the decision of this case and we allow it to be read as a part of the record of the case and it is exhibited as Annexure C1.

In fact, this report should have been exhibited and admitted into evidence by the learned Sessions Judge himself when he had ordered on 23-8-1991 which is as under:

Ahlmad to report and put up with the file on the date fixed.

This report of the Superintendent, Sub Jail shows that there are burn injuries on the belly of the accused measuring 1 x �" wide and 7 x � long.

The learned counsel for the State submits that the prosecution has proved its case beyond reasonable doubt as the delay in lodging the FIR has been duly explained and the dying declaration made by Joginder Kaur is reliable and the presence of Mangu Ram, PW 4, is proved on the record.

We have heard the learned counsel for the parties and gone through the record with their assistance.

The presence of PW 4, Mangu Ram, brother of the deceased Joginder Kaur is doubtful at the time of occurrence. It is so proved from his conduct himself and the other evidence on the record which we are just referring to hereunder.

Mangu Ram, PW 4 has deposed at the trial in his examination-in-Chief that on 17-6-1991, he went to see his sister at Phagwara. On that day at about 5.30 p.m. his sister Joginder Kaur was working in the house and was cleaning the utensils. Accused came there. He poured kerosene oil from the can on the person of Joginder Kaur and ablazed her. He has further stated that to rescue herself, Joginder Kaur held the accused in her grip but the accused got rid of her. He and his sister raised raula which attracted the residents of the Mohalla. Joginder Kaur had suffered burn injuries. He took her to the clinic of Dr. Khosla and as the doctor suggested he took her to Civil Hospital, Phagwara, who further advised him to take the patient to C.M.C. Hospital, Ludhiana. So, he took Joginder Kaur to C.M.C. Ludhiana where she was admitted. She expired on 21-6-1991 at about 4.30 p.m. in C.M.C. Hospital, Ludhiana.

Mangu Ram''s statement in examination-in-chief is belied by his own admission and statement in the cross-examination. He has admitted in the cross-examination that he was sitting in the room adjoining the store when his sister was burnt in the kitchen situated in the court-yard which means he did not see the occurrence. Mangu Ram then stated in his cross-examination that he tried to extinguish the fire of her sister but he did not suffer any injury either on his person or on his clothes. This again looks that he is telling a lie. If he was present at the time of occurrence and had tried to extinguish the fire then certainly some part of his body or the clothes should have been affected by the fire. It is unbelieveable that neither he nor his clothes were affected by fire or coming out of the burning of his sister and her clothes, particularly, when her sister, Gurnam Kaur, since deceased had 98 per cent burns on her body as disclosed by the doctor in his statement at the trial. In cross-examination he tried to explain as to why he did not get any burn injury by saying that he extinguished her fire with the help of a gunny bag and he had stated so before the police. When confronted with his statement Ex.DA before the police it was not so recorded there. Moreover, this witness admits himself in his cross-examination that gunny bag was not taken into possession by the police. In order to justify one lie he speaks another which convinces the Court not to rely upon the statement of such a witness at all. He then admits in his cross-examination that the neighbours tried to extinguish her fire but they did not suffer any burn injuries in the process. This again seems to be most unnatural. He again made an improvement at trial by stating that in order to rescue herself, Joginder Kaur held the accused in her grip but the accused got rid of her, when confronted about his saying this fact in the cross-examination, he stated that he had stated before the police that Joginder Kaur held her husband in her grip to save herself but he fled away. This factual position is belied even by the statement of his sister Joginder Kaur. Even she has not stated in her statement that to rescue herself she held the accused in her grip and that the accused got rid of her grip. Following are the other facts which belie the statement of Mangu Ram and further go to show that he was not present at the time of occurrence at all.

i) It is borne out from the record that it was not Mangu Ram, PW 4 but Hari Dass, DW 2 who got Joginder Kaur admitted in the C.M.C. Hospital, Ludhiana. The assertion of Mangu Ram PW that he got his sister admitted to C.M.C. Hospital, Ludhiana is belied by the testimony of Dr. H. Tongbram, PW 2 who admitted in his cross-examination that Joginder Kaur was brought to the hospital for admission by Hari Dass. Hari Dass who appeared as DW 2 at the trial corroborated the version of the doctor by saying that he got Joginder Kaur admitted in the hospital. The statement of DW, Hari Dass that he got Joginder Kaur admitted in the hospital was not contradicted in any manner.

ii) Mangu Ram did not report the matter to the police regarding the incident though he claims to be present at the time of occurrence on 17-6-1991 itself. He has admitted in his cross-examination that on 18-6-1991, he went to his village and thereafter his relations came to C.M.C. Hospital, Ludhiana to enquire about Joginder Kaur. Even then neither he nor anyone of his relatives reported the matter to the police.

iii) Though Mangu Ram has stated in his examination-in-chief that the accused had been beating his sister and she had reported that fact of beating to him but he has admitted in his cross-examination that he did not tell to any respectable that he was told by his sister that she was maltreated by the accused. He has further admitted in the cross-examination that he did not make any report regarding the mal-treatment meted out by her sister at the hands of the accused to the police nor he made any complaint to any of the neighours of the accused regarding that maltreatment.

Thus, we arrive at a conclusion from this evidence on the file that Mangu Ram, PW4, in fact, was not present at the time of occurrence.

We also cannot persuade ourselves to rely upon the dying declaration alleged to have been made by the deceased Joginder Kaur on the following grounds: --

i) It has come in the evidence of Dr. H. Tongbram, PW 2, that on 17-6-1991 at 8.37 pm. Joginder Kaur wife of Chaman Lal (Convict-appellant) was admitted in the C.M.C. Hospital, Ludhiana in regard to plastic surgery. She was having 98% burns on her body and an intimation to that effect was sent to the police. There is no explanation on the record as to why her statement could not be recorded by the police before 19-6-1991.

ii) It is an admitted fact that statement of Joginder Kaur was recorded by ASI Raj Kumar only on 19-6-1991 at 6.15 p.m. It is further not known as to why an attempt was not made to secure the services of a Judicial Magistrate to record the statement of the deceased, when she was in a serious condition and had 98% burns on her body. The statement was not recorded in the presence of a doctor or even attested by any doctor.

iii) PW 2 Dr. M. Tongbram has admitted in his cross-examination that from the time of admission till her statement was recorded by the police, Joginder Kaur was conscious but she expired on 21-6-1991 at 4.15 p.m. No explanation has been furnished by the prosecution as to why a request was not made to the Magistrate to record the dying declaration of Joginder Kaur who as stated above was lying serious in the hospital due to 98% burns. Head Constable Gurdial Singh was examined as PW 5. He identified the handwriting and signatures of ASI Raj Kumar who had died before he could be produced at the trial. He also proved the recoveries made by the ASI as he had accompanied him to the place of occurrence and remained with him till the recording of the statement of Joginder Kaur. Even PW 5 Head Constable Gurdial Singh has admitted in his cross-examination that no effort was made to get the statement of Joginder Kaur recorded from any Magistrate.

iv) It is again established on the record that the chances of Joginder Kaur being tutored before she gave her statement before the police i.e. before ASI Raj Kumar could not be ruled out. PW 5, H.C. ''Gurdial Singh who was produced to prove the statement of Raj Kumar, ASI who had died before he could be produced at the trial, has admitted in his cross-examination that 7 or 8 persons from the parents'' side of Joginder Kaur were present when her statement was recorded by ASI Raj Kumar. The statement of the deceased Joginder Kaur has not been recorded in a question-answer form. Moreover, the statement of Joginder Kuar does not read in a consistent and cohesive manner. It seems that some words have been added by the ASI on the asking of her relations present there or on her own. After the presence of her brother was noted in the earlier part of her statement then in the end again a sentence has been added like this:

My brother Manga Ram had witnessed the whole occurrence.

Moreover, it has come in the statement of the deceased that the persons of her Mohalla gathered there and extinguished the fire and that her neighbours got her admitted in the hospital but no person from the Mohalla or the neighbourhood has neither been examined by the prosecution nor has been produced at the trial. Even PW 5, HC, Gurdial Singh who accompanied the ASI at the spot admitted that 7-8 persons from the nighbourhood met them at the spot but he did not know whether the ASI recorded their statements or not.

There is anotherpoint which also persuades us to disbelieve the prosecution story. It has neither been mentioned in the injury report Ex.PA nor in the post-mortem report Ex.PC that the burns on the body of Joginder Kaur, deceased, were due to sprinkling of kerosene. In the report Ex.PA submitted by the doctor H. Tongbram, PW 2 before the column: Mode of Injury: it is written, ''flame burns''.Column No. 12 of inquest report requires that it should be stated that in what manner or by what weapon or instrument such marks of injuries or of violence appeared to have! been committed. Before column No. 12 it has: been written ''burn injuries''. Similarly, apparent cause of death in column No. 20 of the inquest'' report it is stated ''due to burning.'' There is no mention of kerosene at all either in the report of the doctor Ex.PA or in the inquest report Ex.PC or in any statement of any doctor.

It appears from the evidence on the file that the plea taken by the accused that Joginder Kaur got fire accidently in the kitchen while cooking meals and he tried to-extinguish the fire and in that process he also received burn injuries finds corroboration by the report Ex. C-1 which was requisitioned by the District and Sessions Judge vide his order dated 17-8-1991 from the Superintendent, Sub Jail, Phagwara where the accused was lodged in that jail at the relevant time. This report Ex. C-1 clearly reveals that the belly of the accused was burnt and the injury was to the extent of 1 x �" wide and 7 x�" long. All this shows that Joginder Kaur, deceased, was the victim of accidental fire and her husband i.e. the accused Chaman Lal who was present there tried to extinguish the fire and in the process part of his body was also burnt.

Another factor which needs mention here is that Amrik Chand who was born out of the loins of the deceased Joginder Kaur and the accused Chaman Lal, aged about 11 years and a student of 4th class was not allowed to be examined by the Sessions Judge as defence witness. Though neither the defence nor the prosecution can take benefit of this fact but we are constrained to observe that Shri J.C. Aggarwal, Sessions Judge, Kapurthala showed ignorance and perhaps bias in not allowing him to be examined as a witness by observing that witness could not be examined as he did not understand the sanctity of oath. We have gone through the questions put to him by the Sessions Judge and the answers given by Amrik Chand, which we reproduce hereunder: --

Q. Do you know why the oath is taken?

A. I do not know.

Q. Do you know that one must speak the truth?

A. Yes.

Q. Do you know why the people go to temples and Gurdawara?

A. They go for prayer.

Answers given to the questions put to him by the Sessions Judge are intelligible as are given by a person of normal understanding who understands what he has been asked and gives the proper answer to the question put. We have easily reach at the conclusion from the answers given by Amrik Chand to the questions put to him by the Sessions Judge that he understood the sanctity of oath and he should have been allowed to appear as a witness at the trial, but in any case now this is a matter which shall be taken up separately on the administrative side. But one thing is clear that the Sessions Judge has deprived the defence of its valuable right to produce evidence in order to establish the truthfulness of its version.

The delay of about 50 hours in lodging the FIR also assumes significance in the circumstances of this case. Admittedly, Joginder Kaur was admitted in the C.M.C. Hospital, Ludhiana on 17-6-1991 at 8.35 p.m. but her statement was recorded only by an ASI and not by a Magistrate on 19-6-1991 at 6.15 p.m. Even PW-4 Mangu Ram who claims to be present at the time of occurrence and who admits in his cross-examination to have gone on the next day to his village and had come back along with his relations to the hospital on the next day i.e. 18-6-1991, neither reported the matter himself nor any of his relations reported the matter to the police. Even the police did not record her statement though it has come in evidence of PW-1 Amar Nath Head Constable that after the admission of Joginder Kaur in C.M.C. Hospital, Ludhiana he had sent a wireless message to the police regarding the admission of Joginder Kaur. It is an admitted fact that Joginder Kaur was admitted in the CMC hospital, Ludhiana on 17-6-91 at 8.37 p.m. The delay in these circumstances also seems to be fatal to the prosecution.

Aftertaking an overall view of the evidence on the file, we cannot sustain the judgment/order of the learned Sessions Judge, Kapurthala. The judgment/order dated 11-5-1994 of Sessions Judge, Kapurthala is this, set aside and the appeal is accepted. The appellant is consequently acquitted of the charge framed against him. He shall be set at liberty forthwith, if not otherwise, needed in any other cognizable offence.