Rajinder Kumar vs State of Punjab

V.K. Bali, J.

Prem Sheela, even though blessed with three male children during ten years of her married life, it appears, had passed through an agonizing time all through these years as the one who was supposed to have protected and looked after her, on account of his addiction to liquor, would pick up a fight and beat her. On October 4, 1990, on one such occasion when he was drunk, he had given beating to his wife and still not satisfied, when he got up on October 5, 1990, he is stated to have burnt his wife alive. These are the allegations of the prosecution on which, Rajinder Kumar, appellant herein, was tried under Section 302 of the Indian Penal Code for having burnt his wife alive at 7 AM on October 5, 1990. He was, therefore, charged for intentionally causing death of his wife Prem Sheela, who at that time was 28 years of age. The FIR as such came into being on the statement made by none other than Prem Sheela herself when she stated before HC Mohinder Singh, PW 8 at CMC Hospital, Ludhiana, at 10.45 A.M. on October 5, 1990 that she alongwith her husband Rajinder Kumar and children was residing at New Madhopuri, Ludhiana, Gali No. 18, About ten years ago, her parents married her to Rajinder Kumar and out of the wedlock she gave birth to three sons. Her husband Rajinder Kumar was working in Sandhu Hosiery as overlock worker and was in the habit of drinking wine. As usual, her husband came home after drinking and started beating her. But due to overdrunk he slept early. In the morning, when she woke up for preparing tea for children, then at 7 AM her husband got up and picked up a bottle of Kerosene oil and sprinkled the same upon her and after that set her on fire with a match box. She raised an alarm for her safety and tried to run outside but fell down in her house in coma. Some members of mohalla had informed her parents who were residing nearby in Gali No. 12, New Madhopuri, Shiv Mandir. Her brother Badri Dass and father Anirudh Shukla took her to CMC Hospital for treatment where her treatment had been going on. Her husband Rajinder Kumar had poured Kerosene on her and set her ablaze in order to kill her. Prem Sheela succumbed to the burn injuries suffered by her on the intervening night of October 89, 1990 at 12.10 A.M. The special report with regard to incident reached the Magistrate concerned at 10 AM on October 9, 1990.

The Prosecution, with a view to bring home the offence against the appellant, examined PW 3 Dr. Pritpal Singh, Medical Officer, Civil Hospital, Ludhiana. He stated that on October 9, 1990 at 12.40 PM, he conducted post mortem examination on the dead body of Prem Sheela. The dead body was brought by HC Mohinder Singh and identified by Anirudh Shukla, father of the deceased and Sham Sunder said to be her neighbour. The doctor found superficial to deep burns all over the body except sole of right foot and upper part of the scalp. There was singeing of hair on front of scalp. Pus was coming out from the infected burns at places. The pleura, larynx and trachea and the lungs were congested. On dissection, pus was found present in both the lungs at places. Heart was also congested and its right side contained dark coloured blood. Peritoneum, stomach, small and large intestines, liver, spleen, kidneys and urinary bladder were also congested. The uterus was empty. The cause of death in the opinion of the doctor was septicemeia due to extensive burns which was sufficient to cause death in ordinary course of nature. All the burn injuries were antemortem in nature. The probable time that elapsed between injuries and death was within four days and between death and post mortem within 12 hours. In his crossexamination, he stated that it was a case of 100% burns. Dr. Leo Theobald, Senior Resident in the department of Plastic Surgery, CMC Hospital, Ludhiana was examined as PW6. He stated that Prem Sheela was admitted in the hospital on October 5, 1990, at 8.30 AM, as a case of 100% burn injuries. She was brought to the hospital by her brother Badri Nath. On examination, he found that she was having burn injuries which were fresh, i.e., of one hour duration. The injuries were dangerous to life. He proved the injury report, Ex. PG. He sent letter Ex. PH to the police intimating about the death of Prem Sheela. As per history given by the patient, she was set on fire by her husband after dousing her with kerosene. Dr. Subhash Chander, Registrar, CMC Hospital, Ludhiana, who appeared as PW7, stated that on October 5, 1990, Mr. Bhatti, Executive Magistrate Ludhiana came to the hospital and recorded statement of Prem Sheela wife of Rajinder Kumar, who was admitted in the Emergency Ward of the hospital. The Executive Magistrate asked him to examine the patient regarding her fitness to make statement. He examined her and declared her fit to make statement. He made endorsement, Ex. PJ in this respect. Shortly thereafter HC Mohinder Singh also came to the hospital and made an application, Ex. PK regarding fitness of Prem Sheela to make statement. He declared her fit to make statement vide endorsement, Ex. PK/1 at 10.50 AM. In his crossexamination, he stated that the Executive Magistrate had not recorded the statement of Prem Sheela in his presence. He, however, denied the suggestion that he had appended his endorsement, Ex. PJ on the dying declaration at the instance of the Executive Magistrate.

PW1 Inspector Purshotam Singh stated that on October 25, 1990 he verified the investigation of his case and after completion of the investigation, filed report under Section 173 Cr.P.C. PW2 Harmohinder Singh, a draftsman, stated that on July 3, 1991 he prepared the site plan, Ex. PA of the place of occurrence. In his crossexamination he stated that point `A'' was not visible from the lane but it was visible if one stands inside the house close to the door. PW4 Ghanshyam Mishra, a neighbour of the appellant and deceased stated that at the time of occurrence he was residing in street No. 18, New Madhopuri, Ludhiana. On October 5, 1990 at about 7 AM he was returning to his house after having a walk at GT Road and when he reached near the house in which Rajinder Kumar appellant was residing, he found the doors of his house lying open. Rajinder Kumar appellant was telling his wife Prem Sheela that she would not be left alive and would be killed. After saying so, appellant poured kerosene oil from a bottle on Prem Sheela and thereafter set her on fire. He went inside but could not pick up courage to intervene apprehending that the appellant may be having a knife with him. Appellant then ran away from his house. He then went to the house of Anirudh Shukla, father of the deceased, who was keeping his residence in street No. 12, New Madhopuri. Prem Sheela fell down in the courtyard of her house. Again said that he was going to the house of father of the deceased but in the meanwhile he happened to reach there at the spot. He did not tell anything to her father as neighbours had also gathered there. Police also reached the place of occurrence but he did not make any statement before the police. The police took into possession kerosene bottle and a match box vide memo Ex. PE which bore his signatures. He reiterated that he had not made any statement before the police and had left after the articles, mentioned above, were taken into possession. He further stated that police might have recorded his statement on their own. In his crossexamination he stated that the outer door of the house of appellant may be 21/23 feet in width and there were shutters fixed in the door which could be locked and bolted. The outer door of the house opened in a gallery and the door of the room of the appellant also opened in that gallery. There was a court yard on one side of the gallery and the room may be 10'' from the outer gate. There was a kitchen in one corner of the courtyard. His house was situated at a distance of about 400 yards from the house of the appellant. The unfortunate father of Prem Sheela appeared as PW5. He deposed with regard to marriage of his daughter with the appellant and about his drinking habit resulting into beating of his daughter. He also stated that on October 5, 1990 Sham Sunder came to him at about 7 AM and told that his daughter had been set on fire by the appellant. He left for the house of appellant along with his son Badri Nath. On reaching there, he found his daughter lying by the side of the door with burn injuries on all her body. He removed her to CMC Hospital and got her admitted there. He moved application, Ex. PF to the Deputy Commissioner, Ludhiana for getting the statement of his daughter recorded. In his crossexamination, he stated that his daughter was not unconscious when he reached the spot. She was crying with pain. He was, however, confronted with his statement made before the police wherein he had stated that his daughter was lying unconscious near the doctor. HC Mohinder Singh, who was examined as PW8, deposed that on October 5, 1990 at about 9.30 AM he received a wireless message that Prem Sheela was lying admitted in CMC Hospital, Ludhiana having injuries on her person. He went to the hospital along with constable Sajjan Singh and made written request, Ex. PK to the doctor regarding the fitness of Prem Sheela to make statement. The doctor declared her fit to make statement vide endorsement, Ex. PK/1. Then he recorded her statement, EX.PL which was read over to her and she thumb marked it in token of its correctness. In his crossexamination, he stated that when he recorded statement of Prem Sheela, her father and brother were not near her. He had enquired from Prem Sheela as to what had happened to her and she started making statement in narrative form. He wrote down the statement of Prem Sheela the way she told. He was writing down the statement while she was making statement. PW9 I.Y. Bhatti, Executive Magistrate stated that on October 5, 1990 application, Ex.PF was entrusted to him by the District Magistrate, Ludhiana, vide endorsement Ex.PF/1. He reached the CMC Hospital Ludhiana on the same day to record the statement of Prem Sheela. He called Dr. Subhash Chander, who certified vide endorsement Ex.PJ that Smt. Prem Sheela was fit to make statement. Thereafter he recorded her statement correctly without any addition or omission on his part. Whatever she had stated before him, he had recorded the same. In his crossexamination, he stated that some of the family members of Prem Sheela were present by her side when he questioned her with regard to incident. He also stated that he had not obtained her signatures/thumb impression on Ex.PJ/1. He denied that Prem Sheela did not make any statement before him as she was under the influence of pain killers and sedatives. He also stated that he had not examined Prem Sheela in the form of questions and answers. PW10 ASI Dharam Pal and PW11 ASI Sukhchain Singh detailed the steps that they had taken while investigating this case.

When examined under Section 313 Cr.P.C., the appellant stated that he had cordial relations with his wife. They had three sons and were leading a happy marital life. He was working as mechanic of overlock machine in B.S. Sandhu Hosiery, Ludhiana. They were exporters. Due to Russian disorder, the export business of Ludhiana came to halt. He was practically unemployed. He was asking his wife that they should go to their native village Rampur Bujurag in District Gorakhpur because they could live in a family house there and food would also be free. He told his wife that when situation would improve, they could again come back. He fatherinlaw and motherinlaw, who were living in street No. 18, were provoking his wife not to leave Ludhiana as she would have to work in the household as they had joint family in the village. His fatherinlaw was a Pujari in the Mandir in Street No. 18 and he was levelling allegations against him that his whole family was taking alcohol, onions, garlic etc. and, thus, it would not be proper for her to live at her native village. He had purchased the house with his own small savings and in his absence to Gorakhpur, he would have rented out the house. When he was in judicial custody, the came to know that his fatherinlaw had managed to get the house transferred in the name of his wife by forging some documents regarding the sale. He was in his village in those days and there his father received a telegram regarding seriousness of Prem Sheela. He had gone to District Gorakhpur from his village in search of employment and to settle other family matters. In the meantime, he came back to his village and came to know through his relations that Prem Sheela had died due to burn injuries. His fatherinlaw was trying to implicate him falsely in her murder and out of fear that he would be beaten and implicated in this case, he did not come to Ludhiana immediately. However, after coming back to his village from Gorakhpur, when he came to know that the people of his brotherhood were being apprehended and tortured in Ludhiana by the police, he surrendered before the Court of Magistrate after engaging a counsel. Ultimately, he was bailed out by the High Court. He led evidence in defence and examined Dr. R.K. Sharma as DW1. Dr. Sharma stated that he was in Government job since February, 1985 and he did his MBBS in June, 1980. He was specialist in general surgery in ESI Hospital at Ludhiana. He stated that a patient with 100% burn injuries, when doused with kerosene and admitted in the hospital, the first anxiety of the doctor would be to save the life and for that the doctors give life saving treatment which includes injections like Fortvin, Compose, IV Fluids etc. and because of this treatment the patient feels slightly relieved of the pain and sedated thereof. In case no such treatment is given to the patient with 100% burn injuries for 23 hours, then the state of shock is enhanced and patient''s condition deteriorates towards death. To a court question put to him as to whether he could refer to any text book wherein it might have been mentioned that in each and every case of 100% burn injuries, the patient would not be able to make statement, he answered by saying that it was so mentioned in text book of Surgery by Davis Christopher in the Chapter of Burns. He further stated that if there are 100% burn injuries then the patient would not be in a position to make statement. If the burns are superficial, the patient would also be in a shock but would be in a position to speak. He denied the suggestion that a patient with 100% burn injuries could speak and make statement. Ved Raj, an Assistant from Telegraph office appeared as DW2. He only proved telegram Ex.DA which bore a postal stamp of Gorakhpur dated October 5, 1990. This telegram, according to the witness, is purported to have emanated from Ludhiana on October 5, 1990. Bhagwati Parshad Misra, father of the appellant, who appeared as DW3, supported the plea of alibi of the appellant. We are not giving the gist of statement made by DWs 2 and 3 as nothing based upon their statements has been canvassed before us.

We have heard Mr. B.S. Bindra, Senior Advocate assisted by Mr. P.S. Bajwa, learned counsel for the appellant and Mr. Navdeep Singh, learned Asstt. AG, Punjab and with their assistance, gone through the records of the case. Mr. Bindra, learned counsel for the appellant contends that Ghanshyam Misra, PW4 is a got up witness and in fact and reality, he was nowhere near the scene of occurrence. All that has been stated with a view to fortify this contention is that the witness himself stated that his statement was not recorded by the police as also that point `A'' shown in the site plan, Ex.PA, where this witness is stated to have been standing at the relevant time, was that nothing could be seen inside the kitchen. Before we might comment upon the contention raised by the learned counsel with a view to show that PW4 was not present at the scene of occurrence, we would like to mention that this witness has supported the prosecution version through and through. It has also not been disputed that he had been living in a nearby house from the house of appellant. He is also admitted to have attested recovery memo Ex.PE. The statements under Section 161 Cr.P.C. are not signed. The police, after making enquiries during the course of investigation, records the statements of the witnesses under Section 161 Cr.P.C. These statements can be only used for contradicting or corroborating a witness. It is, thus, possible for a witness, who is not well versed with the procedural wrangles, to understand that his statement, which was not signed, was perhaps not recorded. At the relevant time, i.e., when his statement under Section 161 Cr.P.C. must have been recorded by the police, his presence is established as he did attest the recovery memo, Ex.PE, vide which kerosene bottle and match box were taken into possession. Insofar as site plan, Ex.PA is concerned, we have examined the same and are of the clear view that if a person is standing at a place shown at `A'' and the door of the kitchen is open, it is very much possible to see as to what is happening inside the kitchen. All that PW2 stated is that point `A'' is not visible from the lane. He, however, stated that the said place was visible if one stands inside the house closer to the door. PW4 clearly stated that he found the doors of the appellant''s house lying open. He went inside the house and saw the occurrence, even though he did not gather courage enough to intervene. The contention of the learned counsel that PW4 had not witnessed the occurrence is, thus, repelled.

Learned counsel for the appellant then contends that no reliance could be placed upon the dying declaration said to have been made by Prem Sheela for the reason that a patient with 100% burn injuries could not be conscious and as such could not make any statement. It is further being contended that the dying declaration was not recorded in questions and answers form and for that reason also it had to be rejected. For the latter contention, learned counsel relies upon a Division Bench Judgement of this Court in Surinder Paul & Ors. v. State of Punjab, 1997 Crl. L.J. 1745. The learned counsel further contends that when family members of Prem Sheela were present and even the dying declaration made by her and which came to be recorded by an Executive Magistrate, was not signed, no reliance could be placed upon the same. We have given our thoughtful consideration to the contentions raised by learned defence counsel but find no merit in any of these. It is true that in the dying declaration that came to be recorded by Head Constable Prem Sheela stated that she had fallen down in her house in coma as also that father of Prem Sheela was confronted with his statement made before the police that when, after hearing about the incident, he went to the house of appellant, he found Prem Sheela lying near the outer door of the house in unconscious condition, yet the fact remains that the Head Constable, who too went to CMC Hospital, Ludhiana, after getting a wireless message before recording the statement of Prem Sheela, put her some questions and recorded her statement only after the doctor concerned had certified that she was fit to make a statement. So much so the doctor concerned had even made endorsement to the effect that Prem Sheela was fit to make a statement. Nothing at all has been pointed out from the evidence that might detract from the sworn testimony of the Head Constable and Executive Magistrate. After examining their evidence, we are of the firm view that they have made a truthful statement and their evidence inspires confidence. Nothing at all has been urged from where it could be made out that they had any animus against the appellant or any interest with the father of the deceased. We are quite convinced that even if, immediately after the occurrence Prem Sheela had become unconscious, she must have regained her consciousness when she was admitted in the hospital and was given some immediate treatment. True that Prem Sheela had 100% burn injuries on her person and DW1 Dr. R.K. Sharma stated that a human being with 100% burn injuries cannot make any statement. However, while making his statement, he added that if the burns are superficial, the patient would be in a state of shock but would be in a position to speak. This doctor had not medically examined Smt. Prem Sheela and, therefore, did not know as to whether she had superficial burn injuries. PW3 Dr. Pritpal Singh, who had conducted post mortem examination on the dead body of Prem Sheela, stated in his examinationinchief that Prem Sheela had superficial to deep burns all over the body except sole of right foot and upper part of the scalp. It is, thus, made out that Prem Sheela had superficial burn injuries as well. That apart, even though DW1 Dr. R.K. Sharma stated that it was mentioned in the text book of Surgery by Davis Christopher that a patient with 100% burn injuries was unable to make a statement, neither the said book and the Chapter therein on burn injuries nor any other opinion of an expert, has been shown to us. We are, therefore, unable to accept the contention of learned counsel that Prem Sheela, when brought in the hospital and given the first aid as well, was unfit to make a statement.

Insofar as contention of learned counsel that dying declaration was not recorded in questions and answers form and reliance placed upon judgment of this Court in Surinder Pal''s case (supra) is concerned, we would like to mention that even though the procedure prescribed for recording dying declaration, reference whereof has been given in detail in Surinder Pal''s case (supra), was not followed meticulously, yet it would not make any difference in the facts and circumstances of this case. The Head Constable, who recorded the dying declaration of Prem Sheela cannot be disbelieved on that count alone. As mentioned above, it could not be even remotely suggested by the defence that he was either interested for some reasons to depose falsely or even to exaggerate the prosecution version or otherwise was inimically disposed towards the appellant. The doctor, in whose presence dying declaration was recorded, clearly stated the Prem Sheela was fit to make statement. The doctor is an independent witness. The statement of Executive Magistrate, who even though had not recorded the dying declaration as per the prescribed procedure, and who too is an independent witness, corroborates the statement of Head Constable and the doctor. In the case of Surinder Pal (supra) also even though it was held that dying declaration was not recorded as per the prescribed rules, yet almost on identical facts, the same was believed and conviction sustained on the basis thereof. It was held that "in the present case, however, nonrecording of the dying declaration by the Executive Magistrate itself shall not detract from the prosecution version. ASI who actually recorded the dying declaration of Smt. Pushpa, even though recorded by a police officer, cannot be disbelieved on that count alone. It has not been shown by the defence that he was either interested for some reasons to exaggerate the prosecution version or was inimically disposed towards the appellants herein. That apart, the doctor in whose presence the dying declaration was recorded by the ASI has deposed in tune with the statement of the ASI. He is totally an independent witness and his evidence inspires confidence. The statement of the Executive Magistrate who as referred to above did not record the statement of Smt. Pushpa himself corroborates the statement of ASI and the doctor."

The presence of family members around Prem Sheela at the time when the Executive Magistrate recorded her dying declaration, would not detract from the authenticity of statement made by her before the Executive Magistrate. Surely, fatherinlaw of the appellant could not be interested in falsely involving him for the sole reason that appellant was troubling his daughter and beating her after consuming liquor. Insofar as his daughter is concerned, she was on the death bed and by securing conviction of appellant, the future of three male children would have certainly become absolutely dark. He could have not taken that risk if factually the appellant had not killed his daughter. Further, even if it is assumed that father of Prem Sheela had some animus to involve the appellant, there was no animus either with the Head Constable or with the Executive Magistrate to record a false statement. Presence of some of the family members of Prem Sheela at the time of recording of dying declaration by the Executive Magistrate is, thus, of no meaning and consequence.

No other point has been urged before us. Finding no merit in this appeal, we dismiss the same, thus, upholding the order of conviction and sentence recorded by the learned trial Judge.