Jasbir @ Kaliya and Another vs State of Haryana

Hemant Gupta, J.—The present appeal is directed against the judgment dated 31.08.2009 convicting the appellants for an offence u/s 302 IPC read with Section 34 Indian Penal Code (for short ''IPC'') and the order dated 01.09.2009 sentencing the appellants to undergo rigorous imprisonment for life and to pay a fine of Rs. 2000/- each. The prosecution case was set in motion on the statement of deceased-Mukesh wife of Ashok Kumar made to Sh. Peeyush Gakhar, Judicial Magistrate Ist Class (for short ''JMIC''), Siwani Camp at Bhiwani on 12.09.2008 at 2:10 PM. She stated that she got married 10-12 years back and she resides on the first floor of her in-laws house. Khazani, who is aunt of her husband, sprinkled kerosene oil on her. Amar Singh, her father-in-law caught hold of her and Kalia, her Devar (brother in law) set her ablaze with the help of a match stick. In response to another question, she stated that wife of Manoj took her to hospital. In the police proceedings Ex. PD/1 leading to the recording of an FIR, it is recorded that on 11th September, on receiving of a ruqa from Government Hospital, Bhiwani and medico legal report (for short ''MLR''), an opinion was sought from the doctor as to whether injured-Mukesh is fit to make statement. The doctor declared injured-Mukesh fit to make statement. Sh. Peeyush Gakhar, JMIC, Bhiwani reached General Hospital for recording of statement but the doctor told to learned Judge that Mukesh is not fit to make statement now. Thereafter, on another request made by the Investigating Officer, doctor declared Mukesh fit to make statement on 12.09.2008. Thereafter, the statement of the abovementioned Mukesh was recorded u/s 164 of the Code of Criminal Procedure (for short ''Cr.P.C.''). She breathed her last on 17.09.2008.

The postmortem on her dead body was conducted by PW-12 Dr. Vinay Kumar on 18.09.2008. Dr. Vinay Kumar proved the postmortem report Ex. PN. The cause of death was burns and complications thereof, which were sufficient to cause death in due course of life. PW-11 Inspector Babu Lal is the Investigating Officer. He took in possession burnt clothes and kerosene can after sealing them. Accused Jasbir was arrested on 06.10.2008. On the basis of his disclosure statement Ex. PM, one match box was recovered from his house. He also arrested accused Amar Singh on the same day. On completion of investigations, report u/s 173 Cr.P.C. was prepared by Ram Bilash, Inspector/SHO. The Investigating Officer, in cross-examination, admitted that deceased-Mukesh along with her husband and children used to reside on the first floor of the house while the other members of the family used to reside on the ground floor separately.

To prove dying declaration, the prosecution examined PW-13 Sh. Peeyush Gakhar, the learned Judicial Magistrate. He deposed that he went to General Hospital, Bhwani on the police request Ex. PQ and recorded the statement of Smt. Mukesh Ex. PJ/2, after the doctor opined that she is fit to make the statement. During the period of recording of statement, she remained fit and the doctor remained present throughout the recording of the statement. The opinion of the doctor is Ex. PJ. In cross-examination, he deposed that on 11.09.2008 he visited General Hospital Bhiwani for recording of statement but Medical Officer present declared that the patient is unable to make the statement. He denied the suggestion that on the previous day also, the patient was fit to make the statement but she was not agreeing to the statement as desired by her parents and that Ex. PJ/2 was not suffered voluntarily. The prosecution also examined PW-1 Dr. Anil Chaudhary, who attended to the patient in the first instance on 11.09.2008. He proved MLR Ex. PA. As per the MLR, she reached hospital at 6:45 AM. He deposed that patient was conscious at the time of her admission and the extent of burns was about 40%. In cross-examination, he admitted that he remained on duty on 11.09.2008 till 8:00 AM and till such time patient was conscious.

PW-10 is Dr. R.P. Sharma, who declared the deceased as fit to make to make the statement on 12.09.2008. He proved his certificate Ex. PJ and his opinion Ex. PJ/1. In cross-examination, he stated that the statement that the patient was conscious is on the basis that no sedatives were given to the patient. Normally, no sedatives are given to the patient in burn cases but pain killers are given. He denied the suggestion that he was not present at the time of recording of statement on 12.09.2008.

The report of the Forensic Science Laboratory, Haryana, Madhuban, Karnal, Ex. PT, is to the effect that residues of hydrocarbons of kerosene were detected in exhibit-1 which is partially burnt clothes of the deceased. The report also says that the plastic canny of 5 lt. was identified with kerosene tagged with some blue coloured dye.

The prosecution examined Ashok, husband of the deceased-Mukesh, as PW-14 and Jage Ram, father of the deceased, as PW-15. PW-14 Ashok was declared hostile. He stating that his wife expired due to burns while preparing tea. In cross-examination, he deposed that his in-laws came to General Hospital, Bhiwani at about 11:00 PM and remained with his wife through the whole night. On the next day also, they remained with his wife. The previous day, when Magistrate visited the hospital, his wife was conscious but she refused to make the statement as desired but subsequently his in-laws have influenced her to make the statement. He also deposed that they are three brothers and the father after retaining one and a half killas of land transferred the remaining land to him and in the names of his brothers Surender and Kalu in equal shares. He deposed that his wife was perturbed due to the transfer of his land by his father to the sons of Surender. There used to frequent quarrel between his father, brother Kalu and his wife. He stated that mental condition of his wife was not normal. She was hot tampered and arrogant lady. PW-15 Jage Ram, father of the deceased, was also declared hostile. In cross-examination by the accused, he denied the suggestion that the accused present in the Court are responsible for the death of his daughter. He deposed that the statement made to the Magistrate was not her voluntary statement. His daughter was a hot tampered lady and her mental condition was not normal.

The accused, after concluding the prosecution evidence, were asked to explain the incriminating circumstances appearing in the evidence in the statements recorded u/s 313 of the Code of Criminal Procedure. They denied the allegations and asserted that the case is false and the witnesses had deposed falsely. The learned trial Court convicted the appellants for an offence u/s 302 read with Section 34 IPC on the basis of dying declaration Ex. PJ/2 recorded by PW-13 Sh. Peeyush Gakhar, JMIC.

A perusal of the police proceedings Ex. PD/1 shows that earlier doctor declared the patient fit to make the statement at 10.30 AM but when the Magistrate reached General Hospital, Bhiwani, then the doctor stated that the patient is not fit to make the statement around 1 P.M. The endorsement of the doctor declaring the patient fit to make statement on 11.09.2008 at 10:30 AM is Ex. PB/1. Thereafter, the Magistrate had gone to record the statement of the patient on 12.09.2008. Such statement has been proved on record as Ex. PJ/2. PW-10 Dr. R.P. Sharma declared the patient fit to make the statement vide endorsement Ex. PJ/1. Exhibit-PJ is the endorsement made by the doctor after statement was recorded that she remained fit and conscious through the recording of the statement.

A perusal of record shows that learned Additional Chief Judicial Magistrate, Bhiwani, has passed an order on 11.09.2008 that an application for recording of statement of the victim has been presented before him at 11:30 AM but since he is not feeling well, therefore, another competent Magistrate was requested to be deputed by the learned Chief Judicial Magistrate. Sh. Peeyush Gakhar was deputed to record statement, who appeared as PW-13. Even in the police proceedings Ex. PD/1, it is recorded that when the Magistrate reached the hospital, the patient was declared unfit to make the statement after the learned Magistrate has recorded an order at 12:55 PM on 11.09.2008 requesting the Medical Officer to report about the fitness of the patient. At 1:10 PM, the Magistrate has recorded an order that Medical Officer present has reported that patient is unfit to make the statement due to sedatives. The doctor who recorded the report that patient is unfit to make the statement has not been examined in the case. The near relations i.e. the husband and the father of the deceased-Mukesh have turned hostile. They have not supported the prosecution case as disclosed by the deceased in her dying declaration.

Learned counsel for the appellants vehemently argued that a patient who was initially fit to make the statement at 10:30 AM on 11.09.2008 cannot become unfit to make the statement at 1:00 PM and still, fit to make the statement the next day. As per PW-10 Dr. R.P. Sharma, the sedatives were not given to the patient but pain killers were given. It is argued that the prosecution has failed to prove that how with pain killers given to an injured with burn injuries can be in a position to give statement the next day, when the previous day she was unfit to make the statement.

We find that the prosecution has failed to prove the circumstances of unfitness of the patient to make statement on 11.09.2008 at about 1:00 PM and then how she became fit to make the statement the next day. The burden of proof was on the prosecution to prove that the deceased was not fit to make statement on 11.09.2008. Such missing link is apparent from the police proceedings. Ex. PD/1, and the statement of PW-13 Sh. Peeyush Gakhar, JMIC as well as the order passed by the Judicial Officer shows that the patient was declared unfit. But the reasons to declare unfit have not been proved on record. The failure to prove the chain of circumstances throws serious doubts on the veracity on the prosecution case.

Still further, Khazani, aunt of husband of deceased, has not even been charge-sheeted. The primary allegation in the dying declaration of sprinkling kerosene oil was on her. The father is sought to have caught hold of her and Kalia, her brother-in-law, sought to have lighted the match stick. If the prosecution has not found anything against Khazani during investigations, the entire prosecution story becomes doubtful. Wife of Manoj, who is said to have taken her to hospital, has also not been examined. She as an independent witness would be in a position to depose the first version, if any, given by the deceased to her.

From the perusal of the entire documentary or oral evidence on record, we find that the prosecution has failed to prove the chain of circumstances leading to only one conclusion that the appellants are guilty of causing death of Mukesh on 11.09.2008. As a consequence thereof, we find that the appellants are entitled to benefit of doubt. Consequently, we allow the present appeal, set aside the judgment of conviction and sentence and set at liberty the appellants, if they are not wanted in any other case.