State of Haryana vs Suresh Kumar

Amarjeet Chaudhary, J.

Suresh Kumar, sole accused in the case was tried for offences punishable under Sections 498/304B of the Indian Penal Code and was acquitted by the Additional Sessions Judge, Karnal vide his judgment dated 1.12.1992. Feeling aggrieved from the said judgment, the State of Haryana has filed this appeal.

The case against the accused was as follows :

Deceased Parveena was married with accused about two years prior to her death which occurred on 1.6.1991. After one month of her marriage, Parveena came to the house of her brother Sohan Lal PW 5 and complained that she was married with a greedy person because he was harassing her on the ground that she did not bring Scooter, Television, Refrigerator etc. in the dowry.

Five or six days prior to her death, Parveena came to the house of Sohan Lal and demanded Rs. 10,000/ on the ground that she was being harassed by her husband on that count. Sohan Lal approached the accused and expressed his inability to pay the said amount. The accused on this threatened that if the amount was not paid to him, he will desert Parveena.

On 1.6.1991, Parveena was preparing tea at about 6.00 a.m. on the stove in the rented house which belonged to Shanti Devi. The accused was also present there. The accused took out kerosene oil from the stove and sprinkled the same on the body of Parveena and then set her on fire with matchstick. Thereafter Suresh Kumar accused brought Parveena to Civil Hospital, Nilokheri and got her admitted there. There Dr. R.C. Mittal PW 1 medically examined Parveena.

The said doctor found burn injuries on the body of Parveena which are embodied in the medicolegal report copy of which is Exhibit PA.

According to the Doctor, the probable duration of injuries was fresh i.e. within six hours. This Doctor also gave the opinion Exhibit PB/1 to the effect that Parveena was fit to make her statement at that time.

On receipt of ruqqa Exhibit PG from the hospital, ASI Jarnail Singh PW 9 went to the hospital and after obtaining opinion of the Doctor to the effect that the patient was fit to make her statement, recorded the statement of Parveena Exhibit PO at 9.05 a.m. Then, after making endorsement Exhibit PO/1, ASI Jarnail Singh sent the statement to the Police Station on the basis of which formal First Information Report DB was recorded by Inspector Bajinder Singh. ASI Jarnail Singh went to the spot and prepared rough site plan Exhibit PP. From inside the house, he took into possession clothes which consisted of one burnt piece of Salwar, one Chunni and one separate piece of Salwar and stove vide recovery memo Exhibit PQ.

The condition of Parveena being precarious, she was referred to Civil Hospital Karnal where on the request of police, Shri Subhash Chand Goyal, PW 6, who was working as Judicial Magistrate, Karnal recorded dying declaration of Parveena Exhibit PL/3.

On 3.6.1991, due to burn injuries, Parveena expired at 8.25 p.m. ASI Jarnail Singh went to Civil Hospital, Karnal and prepared inquest report Exhibit PR. Dr. Anil Sharma PW 2 conducted autopsy on the dead body of Parveena and found the following :

"It was dead body of a female having superficial to deep burns all over the body including external genitalia except the front of right leg and foot and both soles. Rigor mortis was present in all the four limbs. Line of redness was present. Scalp hair was partially burnt and singed. All the body hair were singed. The skin was peeled off at places, leaving behind the underying red area. The sooty blackening of parts was present at places. All the internal organs were congested."

In the opinion of the doctor, death was due to shock as a result of extensive burns which were antemortem in nature. The doctor found about 95% burn injuries on the dead body and the same were sufficient to cause death in the ordinary course of nature.

The prosecution, in order to prove its case, has examined PW 1 Dr. R.C. Mittal, PW 2 Dr. Anil Sharma, PW 3 Constable Jai Pal, PW 4 Manohar Lal, Sohan Lal, PW 5, Sh. Subhash Chand Goyal PW 6, Dr. Sushil Bhatla PW 7, Sham Lal PW 8 and ASI Jarnail Singh PW 9.

After the close of prosecution evidence, the statement of accused under Section 313 Cr.P.C. was recorded. The accused denied the prosecution allegations and pleaded innocence. It is pleaded by the accused that when clothes of Parveena caught fire, he was not present in the house and he was called by the neighbours and subsequently involved in this false case. In defence, the accused had examined Inder Lal DW 1.

We have heard Mr. Sanghi Advocate for the appellant and the counsel for the respondents and have perused the entire paper book.

In this case, the deceased had made two dying declarations, one to ASI Jarnail Singh Exhibit PO on the basis of which First Information Report Exhibit DB was recorded and the other to Shri Subhash Chand Goyal, Judicial Magistrate, PW 6, Exhibit PL/3. The same read as under :

Exhibit PO.

I belong to village Bairsal. About two years ago, my father performed my marriage with Suresh Kumar son of Ami Lal caste Bania, resident of Barthal, according to Hindu rites. I and my husband Suresh Kumar were living at Nilokheri in rented house for the last 11/2 years. Four or five years prior to this incident, my husband Suresh Kumar directed me to bring Rs. 10,000/ from my parents, as he wanted to start some business. I told him that my parents had no money. Today, at about 6.00 a.m., in the morning, I was preparing tea on a stove in the rented house at Nilokheri and my husband was sitting besides me. My husband after taking out some kerosene oil from the stove sprinkled it on me and set me on fire with the matchstick. Then my husband Suresh Kumar got me admitted to Government Hospital in a burnt condition. The whole occurrence was witnessed by our land lady Smt. Shanti Devi wife of Ram Ditta, caste Khatri, resident of Nilokheri. My husband Suresh Kumar sprinkled kerosene oil upon me and set me on fire with the intention to kill me. Action may be taken."

Sd/

<>Attested

Sd/ Jarnail Singh, ASI

1.6.1991."

"PL/3

Today, when I was in the house, my husband sprinkled oil upon me and set me on fire.

Question : Who else was present in the house ?

Answer : Only I and my husband were present in the house.

Question : What transpired ?

Answer : My husband said that he would desert me and he would marry again. When I was preparing the tea on a stove

Question : Why he wanted to remarry ?

Answer : Because he wanted me to bring Rupees Rs. 10,000/ from my parents.

Question : How much time elapsed since your marriage ?

Answer : My marriage took place two years ago.

Question : Did he ever harass you earlier ?

Answer : He had beaten and threatened me that he would kill me.

Question : Where your mother and fatherinlaw are living ?

Answer : They are not living with us. They are living in village Barthal.

Question : Have you anything to say more ?

Answer : I have nothing to say more.

Question : Have you made the above statement at your own will or at the instance of anyone else ?

Answer : I have made the statement of my own free will. There is no pressure upon me.

Sd/ Subhash Goel,

JMIC Duty

1.15 p.m. dt. 1.6.1991."

From the perusal of both the dying declarations, it is apparent that Parveena deceased made a consistent statement that it was her husband Suresh Kumar who had sprinkled kerosene oil and set her ablaze. The first dying declaration was recorded shortly after the occurrence. Great weight must naturally and necessarily be attached to the dying declaration, recorded so soon after the occurrence. The second dying declaration has been recorded by the Judicial Magistrate in the question and answer form to elicit full information. Material particulars have been mentioned in both the dying declarations. Both the dying declarations represent a truthful version of the occurrence. Merely because some friends and relatives happened to be with the deceased before her statements were recorded, the statements cannot be termed as tutored. In the first place, it was indeed natural for the friends and relatives of the deceased to be with the deceased. In the second place, there is nothing to indicate either in the evidence of Shri Subhash Chand Goyal, Judicial Magistrate, PW 6 or of Assistant Sub Inspector Jarnail Singh that anyone had tutored Parveena deceased. It was not suggested either to Shri Subhash Chand Goyal, Judicial Magistrate PW 6 or to Assistant Sub Inspector Jarnail Singh PW 9 that anyone was interested in falsely implicating the accused or that anyone had tutored the deceased to implicate the accused. The dying declarations were recorded in the dialect of the deceased. The dying declarations were recorded after obtaining opinion of the doctor that Parveena was fit to make statements. Therefore, no fault can be found with the same.

The judgment of trial Court is based on conjectures and surmises. One of the grounds for rejecting the dying declarations given by the trial Court is that Dr. R.C. Mittal, PW 1 who had medicolegally examined Parveena was not apprised that she had been set on fire by her husband. The trial Court further highlighted the fact that Doctor R.K. Goel has neither mentioned in bed head ticket Exhibit DB nor in the ruqqa Exhibit PG that Parveena was set ablaze by her husband Suresh Kumar. It was not the duty of Doctor R.C. Mittal PW 1 and Doctor R.K. Goel to enquire from Parveena deceased as to who had set her on fire. These witnesses were only concerned with the treatment. The job of the doctor is only limited. Doctor is not supposed to investigate to know as to who was the assailant. Further, in the dying declaration Exhibit PL/3, recorded by Shri Subhash Chand Goyal, Judicial Magistrate Ist Class, Karnal, she has specifically named her husband as her assailant. She has given her dying declarations to the persons who were competent to record the same. The findings given to the contrary by the trial Court cannot be sustained.

It is now well settled that if after searching scrutiny, the Court is satisfied that the dying declaration represents a truthful version of the occurrence in which the deceased received injuries which led to her death then even in the absence of any independent corroboration, a conviction can be founded thereon. (Reference in this respect may be made to Rabi Chandra Padhan and others v. State of Orrisa, 1980 Supreme Court (Criminal) page 211.) We have closely scrutinised the dying declarations as to their truthfulness in the light of the surrounding facts and circumstances of the case and after such scrutiny we are satisfied that the same are true and free from any effort to prompt the deceased to make such statements. The same are coherent and consistent and there is no legal impediment in founding the conviction upon the same even without any corroboration. We are also of the considered view that the deceased had consciously made the dying declarations understanding the implications of words which were used by her. We are also mindful of the fact that a dying man does not tell a lie to implicate innocent persons falsely. The dying declarations are impeccable and sufficient to base conviction of the accused.

Although there is no evidence on the record that the accused had ever demanded Rs. 10,000/ from his inlaws but it has been admitted by Sham Lal, PW 8 in his corssexamination that Parveena was suffering from epileptic fits and sometimes she used to urinate and ease herself on the bed and lose her senses. Her ailment was sufficient to annoy her husband and to set her on fire to get rid of her.

DW 1 Inder Lal deposed that he knows the accused. He was a tenant in the house of Ram Ditta, which is situated just opposite his house across the street. He also knew Parveena deceased who was wife of the accused as she used to take water from his house. He was running a dairy in his house. Parveena had once suffered a fit in his presence.

He also stated that on the day of occurrence, at about 6.00/7.00 a.m., he was standing on the road in front of his house. Parveena deceased came out of her house in a burning condition. Lower part of her clothes was burning. She then lied on the road and many persons had collected there. Old bag was put on her in order to extinguish fire. About half an hour prior to the occurrence, the accused had gone to his shop and was not present in the house. Ramji Lal called the accused from his shop on the asking of the witness. Message was also sent to the house of brother of Parveena who along with his wife also came there. Then they took Parveena on a rickshaw while the accused followed them on a cycle to the hospital.

The defence version is also not plausible. If the accused had not set Parveena on fire and was not present in the house at the time of incident and had been falsely implicated in this case, then he and Inder Lal DW 1 would have reported the matter to the higher authorities. It has been admitted by Inder Lal DW 1 that the police arrived in the house but he did not tell before the police that the accused was not present in the house at the time of incident and that he was called from his shop after the occurrence. He did not make any statement before the police which clearly implies that the defence version is an afterthought and he has fabricated a false story being neighbour of the accused.

In the light of what has been stated above, we are of the considered view that the prosecution has been able to prove its case against the accused beyond any shadow of reasonable doubt.

The cumulative effect of above discussion is that Suresh Kumar accused caused the death of his wife Parveena by setting her ablaze within seven years of his marriage and that soon before her death, she was subjected to cruelty and harassment by him as she was suffering from epileptic fits and sometimes used to urinate and ease herself on the bed and lose her senses and Suresh Kumar accused was fed up of her.

In the light of above discussion, this appeal is allowed and the judgment of the trial Court is set aside. Suresh Kumar accused is held guilty for the offences punishable under Section 498A and 304B of the Indian Penal Code and convicted accordingly.

The file is ordered to come up for arguments on the quantum of punishment to be awarded to the convicted accused on 15.5.1997.

JUDGMENTOF SENTENCE

23rd May, 1997 : Accused, Suresh Kumar, vide our judgment/order dated 30.4.1997, was held guilty for the offences under Sections 304B and 498A of the Indian Penal Code for causing the death of his wife Parveena and was accordingly convicted. He was called in the Court.

We have heard the learned counsel for both the sides as well as the accused with regard to the quantum of punishment.

Suresh Kumar has submitted that he is a vegetable vendor and is a very poor man and there is nobody to look after his old parents and he is the only earning hand in the family. He further submitted that in case he is given imprisonment, his family will be shattered and put to peril. He has also submitted that he may be pardoned for the offences committed by him as these were committed at the spur of the moment and there was no intention of his to kill his wife.

Mr. Sanghi, DAG, Haryana has submitted that he has committed serious offences against the society and he is, thus, liable to be severely dealt with and given the punishment even upto imprisonment for life.

After hearing the counsel for the parties, we feel that it is a fit case where a lenient view can be taken in the matter. Suresh Kumar is, thus, sentenced to seven years'' rigorous imprisonment for the offence under Section 304B of the Indian Penal Code and one year''s rigorous imprisonment for the offence under Section 498A of the Indian Penal Code and a fine of Rs. 300/ and in default of same, he shall undergo rigorous imprisonment for one month. Both the sentences shall run concurrently.

At this stage, Mr. Arun Palli, counsel for the accused submits that the accused has already undergone two years'' rigorous imprisonment while he remained in jail during the trial of the case and that can be set off against the term of sentence awarded by this Court.

In case the accused remained in jail for two years, that period can be set off by the jail authorities while the convict shall undergo the sentence in jail.

Hence, the Registry is directed to issue warrant of arrest against the accused for undergoing the sentence at District Jail, Karnal.