Prem Kumar vs State of Haryana

Hemant Gupta, J.—The present appeal is directed against an order passed by the learned Sessions Judge, Kaithal on 01.09.2009

convicting the appellant for an offence u/s 302 Indian Penal Code (for short ''IPC'') and the order dated 03.09.2009 sentencing the appellant to

undergo imprisonment for life and to pay a fine of Rs. 5000/-. In default of payment of fine, the appellant was ordered to further undergo rigorous

imprisonment for a period of 6 months. The prosecution case was set in motion on the statement of Pinky, wife of the present appellant, made to

ASI Satbir Singh of Police Station Kaithal in PGI Rohtak on 09.05.2007 at around 3:40 P.M. She stated that her marriage was solemnized with

Prem Kumar, resident of Bhiwani, about 11 years ago and out of wedlock they have got two sons, Gaurav aged 9 years and Gopal aged 5 years.

On 20.04.2007, she along with her husband and son Gopal came to meet her brother-in-law Raj Kumar (elder brother of her husband), who

supplies toys and sweets from Delhi to Kaithal. Her husband Prem Kumar used to drink daily since the day of marriage and also abused and beat

her. She along with her husband and son Gopal were living in a separate room at the house of her brother-in-law Raj Kumar and used to make

meals on iron stove. On 05.05.2007 at about 3:00 P.M., her husband came to house after taking drinks and started abusing her. She told him to

take meals but he did not eat food but he got angry, put kerosene oil in a glass from the stove and set her ablaze. On raising alarm, her brother-in-

law Raj Kumar and his wife Parveen came from their room and doused flames. Raj Kumar shifted her to hospital of Dr. Goel. Doctor referred her

to PGI Rohtak. Her husband has poured kerosene oil on her for killing.

On the basis of said statement Ex. PA, a ruqa was sent by ASI Satbir Singh to Police Station Kaithal and on such ruqa, an F.I.R. for an offence

u/s 307 IPC was lodged at 8:30 P.M. ASI Satbir Singh made a request to Duty Magistrate for recording the statement of injured-Pinky on

09.05.2007 vide Ex. PC. Learned Duty Magistrate passed an order that such application has been presented at 4:15 P.M. vide Ex. PC/1. He

recorded that he is proceeding to PGI to record statement of Pinky. In hospital, the Duty Magistrate sought opinion of the doctor as to whether

injured-Pinky is fit to make statement or not. Dr. Vijay, Junior Resident, has endorsed that patient is fit to give statement at about 4:30 P.M. vide

Ex. PC/2. Thereafter, the learned Magistrate proceeded to record statement Ex. PD. In the preface to recording of statement, it has been

recorded that there is no other person present around bed No. 67 where patient Pinky is lying. He has also recorded that she is in fit state of mind

to release statement and is not under pressure, duress or threat. After stating that his husband is a drunkard and beats her and also that he has not

taken meals on that day, she proceeded to state that she felt harassed due to taunts and beatings by her husband. She herself put the kerosene oil

from the stove and her husband set her ablaze. On alarm, her brother-in-law Raj Kumar and sister-in-law Parveen came and put off the flames.

Pinky breathed her last on 13.05.2007 at 7:30 A.M. Thereafter, offence was converted to one u/s 302 IPC. PW-7 ASI Satbir Singh

completed investigation and submitted report leading to trial of the present appellant.

PW-9 Dr. V.K. Kataria conducted post mortem on the dead body on 13.05.2007. He proved the post mortem report Ex. PN and deposed

that cause of death was burns and its complications. The Investigating Officer ASI Satbir Singh also recorded the statement of father of Pinky

namely Narain Dutt, who was examined as PW-6, though he himself appeared as PW-7. The learned Magistrate who recorded the statement, Ex.

PD, has been examined as PW-4.

PW-4 Sh. Kuldeep Singh, Judicial Magistrate Ist Class has deposed that the patient remained fit to make statement and doctor has certified the

said fact vide his endorsement. In cross-examination, he stated that he did not inquire from the doctor regarding the percentage and the degree of

burns received by the patient and that no other person was present around the bed of the patient except him and the doctor. PW-7 ASI Satbir

Singh has proved the statement made to him at about 3:40 P.M. on 09.05.2007 by the deceased as Ex. PA. He stated that the statement was read

over to her and she signed the same after admitting the same to be correct. He stated that he prepared rough site plan Ex. PH at the instance of

Raj Kumar and also recovered one iron stove Ex. P1, one piece of half burnt cloth Ex. P2 and one glass Ex. P3 from the spot. Narain Dutt - the

father of the deceased, has been examined as PW-6. He deposed that he received a telephonic message from his son-in-law Jai Bhagwan on

06.05.2007 that his daughter Pinky is admitted in PGI Rohtak. He along with his son Vijay Kumar and son-in-law Jai Bhagwan reached PGI

Rohtak and found his daughter Pinky in a burnt condition. He deposed that his daughter disclosed to him that accused was a drunkard and used to

harass her under the influence of liquor and that on 05.05.2007 under the influence of liquor, her husband sprinkled kerosene oil and set her

ablaze. At that time, Pinky was in fit state of mind. In the cross-examination, he admitted that he reached PGI Rohtak at about 2:00 P.M. on

06.05.2007 along with his son Vijay, his wife Raj Rani, sister-in-law Sarla, brother Parkash, son-in-law Jai Bhagwan. He admitted that his wife

continuously remained with his daughter Pinky till her death. During this period Pinky used to talk to them, though she was suffering from severe

pain. He stated that at the time of recording of statement of Pinky, he and his son were present in hospital. Earlier, the statement was recorded by

the police at about 2/2:30 P.M. and at about 4:00 P.M. statement was recorded by a Magistrate. He along with his wife, son, brother, sister-in-

law were present in PGI Rohtak, though at the time of recording of statement, they were not present near the deceased.

The prosecution also led other evidence of formal nature so as to complete the chain of circumstances. It is on the basis of such evidence the

learned trial Court convicted the appellant for an offence u/s 302 IPC and sentenced to undergo life imprisonment as mentioned above.

Learned counsel for the appellant has vehemently argued that the deceased has changed her stand from the first version given at about 3:40

P.M. to PW-7 ASI Satbir Singh then in the statement given to the Magistrate at about 5:00 P.M. on the same day. In the second statement she

has stated that she poured the kerosene on her whereas her husband set her ablaze whereas in the statement Ex. PA the pouring of kerosene is

attributed to her husband. It is, thus, argued that there is material improvement in the stand of the deceased in around one hour.

Still further, the prosecution has failed to examine the doctor who recorded that she is fit to make statement and that the prosecution has failed

to prove the medical treatment history of the deceased. Dr. Goel, who handled the deceased on 05.05.2007, has not been examined, nor there is

any explanation as to why the statement of the deceased was not recorded from 05.05.2007 to 09.05.2007 for more than 4 days. The non-

explanation of delay of recording of F.I.R. and the presence of near relations of the deceased in the hospital for 3 days shows that the near

relations had the opportunity to tutor the deceased, which led to the statement Ex. PA and later Ex. PD.

On the other hand, learned counsel for the State argued that the dying declaration has been recorded by Magistrate, who has recorded his

personal satisfaction that patient was fit to make statement. From the testimony of the Magistrate and that of the father of the deceased PW-6

Narain Dutt, it is apparent that none was present in the room when her statement was being recorded. Therefore, there is no reason to discard the

dying declaration firstly given to PW-6 ASI Satbir Singh and secondly to PW-4 Sh. Kuldeep Singh.

We have heard learned counsel for the parties at length and find that the prosecution has failed to prove the act of commission of offence by

the appellant beyond reasonable doubt. Admittedly, the occurrence has taken place on 05.05.2007 at about 3:00 P.M. The patient was removed

to Goel Hospital but the manner of treatment has not been produced on record. The first statement of the patient was recorded at 3:40 P.M. on

09.05.2007, Ex. PA, i.e. well after 4 days. In the meantime, on 06.05.2007 at 2:00 P.M., the near relations of the patient arrived in the hospital

which included her mother. As per PW-6 Narain Dutt, the mother of the patient remained with her till her death. PW-6 Narain Dutt was

accompanied with many close relations. Therefore, from 06.05.2007 till 09.05.2007 i.e. for a period of more than 72 hours, the deceased was in

the position of being influenced by her near relations such as her mother who was with her throughout. The reasons not to record first version soon

after the occurrence have not been explained. The medical history has not been produced to show that she was not in fit state of mind for four

days. As per the father of the deceased, she was communicating with them throughout. Thus, it is reasonable to infer that statement was not

recorded so as to give time to the patient to be tutored. Still further, the near relations of the patient may not be in the room physically, but the fact

that they were around her for almost 72 hours is sufficient to infer that the thinking process of deceased may have been tainted.

Even from the dying declaration Ex. PA and Ex. PD, it transpires that her husband was a drunkard and there used to be quarrels between

them. Therefore, the onus was on the prosecution to prove that it was an act of the appellant which lead to her death. Dying declaration Ex. PD

shows that she poured kerosene from the stove in a glass and then on her. Such statement is in complete contradiction to the first dying declaration

by ASI Satbir Singh an hour and twenty minutes earlier. Such change in the statement and the fact that the near relations of the deceased were in

position to influence the thinking process of the deceased creates doubt on the prosecution story as propounded.

Apart from such delay in recording of the statement, there is no evidence that it was kerosene poured from the stove was the cause of burns.

Though, stove Ex. P1, glass Ex. P3 and half burnt cloth Ex. P2 were taken in possession but none of these articles were sent for forensic

examination. Therefore, we find that the prosecution has failed to prove the complete chain of circumstances to up held the finding of commission

of offence recorded by the Learned Trial Court. Thus, we find that the appellant is entitled to benefit of doubt. Consequently, by extending benefit

of doubt, we allow the present appeal, set aside the judgment of conviction and sentence and set at liberty the appellant, if he is not wanted in any

other case.