Raju vs State of Punjab

A.S. Garg, J.

Appellant, Raju, aged 23 years, was convicted under Section 302 I.P.C. whereas Madan Lal appellant was convicted under Section 302 read with Section 34 of the Indian Penal Code by the learned Sessions Judge, Ferozepur, vide his judgment dated 11.5.1991 for allegedly causing the death of Sheela Devi by setting her on fire. Both the appellants were sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/ each. In default of payment of fine each one of them was ordered to undergo further rigorous imprisonment for six months each. The conviction and sentence of the appellants are based exclusively on the basis of dying declaration of Sheela Devi Ex.PE.

Sheela Devi, aged about 22 years, was married with Raju one of the appellants about 4/5 years prior to the present occurrence and she gave birth to two children one was male and the other was female. The male child passed away. There were allegedly strained relations between the husband and the wife and husband Raju used to beat his deceased wife occasionally. On 3.4.1992, Madan Lal and Raju appellants allegedly joined hands and thought of eliminating Sheela Devi while they were present in a room of their house at Sant Nagar, Abohar. Raju appellant gave an indication to Madan Lal to bring something. On such an indication he brought a Lotta containing kerosene. He handed over the same to Raju who poured it on the deceased and set the deceased on fire. Both the appellants bolted the door from outside and went away. Sheela Devi raised alarm. The aunt of the appellants namely Sito came and put a quilt on her body. Thereafter other people of the locality also collected there. Sheela Devi was removed to Guru Gobind Singh Medical College and Hospital, Faridkotwith 85 per cent burns, where she passed away on 15.4.1992.

On 9.4.1992, an application Ex.PD was made by Dr. D.R. Garg, Surgery Unit II, G.G.S. arranging the recording of dying declaration. The Sub Divisional Magistrate made an endorsement Ex.PD/1 on the said application that no Duty Magistrate was available to attend to this work. So he deputed PW.3 Sarup Singh, Tehsildar, to perform the duty. The Medical Officer made endorsement Ex.PG/1 on a separate place of paper on 9.4.1992 that the patient was fit to make a statement. The dying declaration of Sheela Devi Ex.PE was recorded in Punjabi by the Tehsildar. In her statement she had unfolded the aforesaid story that her husband''s brother Madan Lal had brought a Lotta of kerosene and Raju himself sprinkled the same on her and set her on fire.

A.S.I. Banta Singh, PW.10, who was entrusted with the investigation of this case, on 11.4.1992, went to the place of occurrence. He inspected the spot and took into possession one stove Ex.P2, Patila Ex. P3 and matchbox Ex.P4, burnt quilt Ex.P5 and the teawater put in a bottle Ex.P6 vide recovery memo Ex.PO. He also prepared rough site plan of the scene of occurrence Ex.PQ.

A.S.I. Jagjit Singh, PW.9, arranged the recording of the dying declaration. A.S.I. Banta Singh, P.W.10, after the death of deceased prepared inquest report Ex.PM. He also made an application Ex.PN/1 for conducting the postmortem examination on the dead body of the deceased. Raju appellant was arrested on 30.4.1992 while Madan Lal appellant was arrested on 11.5.1992. Madan Lal appellant was interrogated and he made a disclosure statement Ex.PJ that he had kept concealed one Lotta in iron box kept in his residential house and could get the same recovered. In pursuance of his disclosure statement, he got recovered the Lotta from the specified place and the same was taken into possession vide memo Ex.PK.

Dr. Prithvi Raj Bhadu, PW.1 stated that on 3.4.1992 at 11.30 A.M. the injured was brought to Civil Hospital, Abohar with burn injuries to the extent of 98%. He gave first aid and referred her to Medical College, Faridkot. He, however, did not prepare the medicolegal report. Ex.PB was the information given to the police by the said Medical Officer. Then the patient was treated in Guru Gobind Singh Medical College, Faridkot. Dr. Shekhar Mangal, PW4, House Surgeon, stated that the entries made in the bed head ticket Ex.PF were in his hand and also stated that the deceased had expired on 15.4.1992 and information in that respect was sent to the police vide Ex.PF/1. He also sent intimation regarding the death of Sheela Devi to S.H.O. Kotwali, Faridkot Ex.PG. Dr. D.R. Garg, PW.5, Medical Officer, Medical College, Faridkot stated that he had furnished the opinion Ex.PG/1 on the request Ex.PH that the deceased was fit to make a statement. Dr. K.K. Aggarwal, PW.8, however, conducted postmortem examination on the dead body. Ex.PL is the carbon copy of the postmortem report and he opined that the burns were ante mortem in nature and were sufficient to cause death in the ordinary course. The body of the deceased was moderately built and was that of a nourishing female. So with this evidence the appellants were put to trial. In their statements under Section 313 of the Code of Criminal Procedure they claimed that they were innocent. They produced Sito Devi as DW.1, who stated that the deceased was related to her through the first cousin of her mother. Her house was opposite to the house of the deceased. She heard the shrieks of Sheela Devi and was in flames and according to her Raju came there and wrapped a quilt on her and got her admitted to the hospital. Later on she learnt that a case of murder had been made out against the appellants. However, according to her, it was a case of accident burns received by the deceased. In cross examination of Bhaku, PW.6, father of the deceased, it was also being suggested that the deceased received burn injuries accidentally. In the face of this evidence and aforesaid circumstances the learned trial Judge held both the accused guilty of murder of Sheela Devi and convicted and sentenced them as indicated above.

Now coming to the case of the prosecution by way of scrutiny of the evidence on record relied upon by the learned trial Judge, as well as the probability of the story of the prosecution, it may be relevant to mention that the material evidence before us has been that of the alleged dying declaration Ex.PE and that of the statement of Bhaku, PW.6, the father of the deceased. The father of the deceased has only stated that his daughter used to be beaten by the accused Raju. The father of the deceased has not given the details of such alleged maltreatment. It has not been mentioned as to what was the demand of the appellantaccused. What did he expect from the deceased or her parents ? No time, month or occasions were mentioned by this witness when the beatings were given to the deceased by Raju appellant. There is no other corroborative evidence to say that the deceased was actually being beaten by Raju appellant. There is an endorsement by the Medical Officer that Raju himself got the deceased admitted in the hospital. The cause of fire is mentioned to be accidental fire by a stove. There has been recovery of the stove, matchbox and patila from the kitchen. There is no background that any quarrel took place between the deceased and the appellantaccused or any Panchayat was convened or any person from the brotherhood collected to get the matter sorted out.

Coming to the story of the prosecution itself that the two accused managed to bring kerosene oil in a utensil, which was sprinkled on the deceased and then she was set on fire itself, sounds improbable in the face of the fact that the deceased did not make any effort to save herself or to give resistance or struggle. Any person would make an effort to save one''s life. So it is an alleged case that the deceased easily accepted that she be set on fire in the given manner and then the room allegedly was also bolted from outside. It is not known as to who opened the door. There was no immediate cause to set her on fire. Neither, the same was claimed nor mentioned anywhere. In the postmortem report and the medicolegal report it is mentioned that she was having a body moderately built. She was not ailing or suffering from any deformity. They were living in a residential locality and her own relations were living in a house opposite to her house.

Now coming over to the evidence of dying declaration, it may be stated that the manner in which it has been appreciated by the learned Sessions Judge, the evidence requires to be restated and reconsidered. It is very significant to note that in the bed head ticket Ex.PA the condition of the patient has been mentioned to be as below :

3.4.1992 = The patient was brought to Civil Hospital, Abohar with 98 per cent burns.

4.4.1992 The condition of the patient was serious.

5.4.1992 The general condition of the patient was serious.

6.4.1992 Condition still serious.

7.4.1992 General condition was serious.

8.4.1992 General condition was serious.

9.4.1992 Condition of the patient was serious.

10.4.1992 Condition of the patient is serious.

11.4.1992 Advised recatheterization.

12.4.1992 General condition of the patient was serious.

13.4.1994 General condition of the patient was serious.

14.4.1992 General condition of the patient was serious.

15.4.1992 General condition of the patient was serious.

at 3.15 p.m. Patient died.

If one notices the writing on the bed head ticket it seems that important entries appeared to have been made at one and the same time pertaining to various dates. It is not believable that a patient who had 98 per cent burns and whose condition had almost been serious throughout; suddenly the entries would start referring that "she speaks a few words" and then suddenly the service of the Deputy Magistrate was thought to be required. The same Medical Officer has made all the entries. The learned counsel for the appellants has vehemently argued that different doctors come on duty at different times but in the case in hand the entire treatment has been handled by one and the same doctor which raises a suspicion in the manner the entries have been written.

Then the learned Counsel has pointed out that the statement of P.W.3 Sarup Singh, Tehsildar, needs to be considered who has admittedly not recorded the said dying declaration Ex.PE in his own hand. According to Tehsildar, he himself had recorded the statement but he had to admit that it was not recorded by him but by his Reader. He did not record the statement in question and answer form. The Tehsildar did not mention in Ex.PE anything of his own about the condition of the patient and the persons present there or what precaution did he take or that the statement contained the true account of the version of the deceased. The Tehsildar himself claimed that in fact no application was made to the Medical Officer to obtain his opinion whether the patient was fit to make his statement. He orally asked the doctor to furnish an opinion as such. The Tehsildar has not sated that he asked any question from the patient. He claimed that his Reader recorded the statement in his presence. The opinion of the Medical Officer is on a separate page Ex.PG/1 that the patient was fit to make a statement. It was not obtained on an application presented before the doctor or Incharge of the Medical College. The Investigating Officer who investigated this part of the case, A.S.I. Jagit Singh, PW.9, was crossexamined on another date than on the date on which his examinationinchief was recorded and was suggested that in fact he did not actually take the Tehsildar to the hospital and that some thumb impressions other than that of Sheela Devi were obtained on this fake and fabricated statement. The A.S.I. stated that in fact the steno of the Tehsildar was not with him when he went to record the statement meaning thereby that no official of his office was present or taken by him for recording the statement.

The learned Deputy Advocate General has not been able to advance any tangible arguments to rebut the submissions of the learned Counsel for the appellant as regard suspicious circumstances which surrounded the illegal recording of the dying declaration Ex.PE. After the aforesaid evidence of dying declaration had been recast one cannot inspire the confidence in the truthfulness of this part of the evidence that such as statement could be written in the manner claimed. It is not believable that a patient whose condition was so critical throughout could have been able to speak on the day that dying declaration was allegedly made. The document was not written by the officer himself. The statement was not recorded in question answers form. The condition of the patient was not recorded and in fact there was neither the Investigating Officer nor the Medical Officer nor the Tehsildar having any knowledge as to what was to be done in such a situation or may be that they were supposed to manipulate some evidence to implicate the appellants in an improbable story.

The father of the deceased even did not know as to how the occurrence took place. A part of the statement of PW.6 Bakhu, the father of the deceased may be reproduced as under :

"Then we came to Medical College, Faridkot. My daughter was unconscious. As I was not aware as to how she got burn injuries, so I did not make any statement before the police. The police was already knowing that my daughter was lying in burnt condition. Even after the registration of the case I made no statement before the police. x x x x xx x x x xx x x x x x x x x . The police did not meet in the hospital when we came there for the first time. Police met me after the death. I myself went to the police to Abohar to inform the death of my daughter in police station."

The case of the defence has been that Madan Lal had been residing in village Bada Guda in district Sirsa. He admittedly was arrested after about a month of the occurrence. The police did not collect any ration card or voter list to say that Madan Lal and Raju appellants were living together. So in the given situation if a person accidentally involved in an incident where one catches the fire and died, what investigation is to be made, is of great significance. It is the duty of the police to investigate the case keeping in mind that they were not to involve the persons falsely. They are not supposed to involve the persons in a criminal case just because a person dies though a pathetic death. The persons who can be involved easily may be the husband or his relations and they can be brought to the dock without caring for the norms of law laid down for proper investigation. At the investigation stage the police is supposed to do justice and investigate the matter in such a way that public reposes a confidence in our police force. If one goes through the evidence minutely the only role of Madan Lal in the whole occurrence is that on the indication of his brother, he allegedly brought a Lotta of kerosene. There is no doubt that the deceased had died a very pathetic death involving 98 per cent burns and everybody''s sympathy evokes in her favour but at the same time the machinery of law and justice would not extend its arms to punish the persons involved unless the evidence inspires confidence in its bona fide and truthfulness. We need not say anything more on this aspect. We are of the firm view that the conviction and sentence of the appellants in the case in hand cannot be sustained.

In view of the above discussion, the appeal is allowed, the conviction and sentence of the appellants are set aside and the appellants are acquitted of the charges framed against them.