Subash vs State of Haryana

S.K. Jain, J

Subhash, appellant, was found guilty of having burnt alive his wife Smt. Kamla, by Additional Sessions Judge Rohtak and he was awarded life sentence under Section 302 IPC. Feeling aggrieved against his conviction and sentence, he has come up in appeal.

Brief facts of the prosecution case are that Smt. Kamla daughter of Daya Singh was married to Subhash accused 15 years back. 2 1/2 years after marriage their relations deteriorated and accused started beating her. She was turned out of her matrimonial house by him whereupon she lived with her parents for two years. But thereafter a settlement having arrived at between them through the good offices of the Panchayat of brotherhood, she rejoined the accused. But unfortunately quarrels were resumed between them. On 1771989, at about 8.00 p.m. accused returned to his house under influence of liquor and started beating his daughter Pinki, Smt. Kamla hid herself inside the Kotha but the accused threatened to kill her also. He sprinkled kerosene oil on her out of a bottle an set her ablaze. The cries of Kamala attracted her motherinlaw. She extinguished the fire by covering her body with a durry and then removed her to the Hospital. On her arrival in Medical College Hospital, Rohtak. Dr. Arun Gera, PW13 sent ruqa Ex. PT to the police for making arrangement for recording her statement. Head Constable Nar Singh moved application Ex. PH before Subhash Goyal, Judicial Magistrate Ist Class, Rohtak. He recorded statement Ex. PJ of Smt. Kamala. On the basis of the said statement of Smt. Kamla daily diary report No. 12, Ex. PE, was recorded at 11.50 a.m. on 1171989 which formed the formal FIR under Section 307 IPC Special report was delivered to the learned Ilaqa Magistrate at 7.00 a.m. on 1271989 at Rohtak. Investigating Officer ASI Nar Singh PW 12 accompanied Smt. Anaro, mother of the accused, from the Hospital to the spot. He had also sent a massage to the parents of Kamla. On reaching the spot he got photograph Ex. P1 to P5 taken by Constable Narinder Kumar, police photographer, PW3. The Assistant Sub Inspector inspected the spot and lifted a bottle Ex. P 11 containing a little quantity of kerosene oil. He also lifted a match box, Ex. P12, from there. Three semi burnt clothes namely, two chadars and one cover was also lifted by him from the spot. On 14111989 he arrested the accused.

Smt. Kamla expired at 10.20 a.m. on 1571989 in Medical College Hospital, Rohtak. Dr. Shiva Mathur, PW1, sent ruqa Ex. PA to police Medical College Hospital Rohtak. Sub Inspector, Gian Chand on receipt of the ruqa regarding the death of Kamala, went to the Ward of the hospital and prepared inquest report Ex. PC. He caused the dead body to be sent for postmortem examination. DDR No. 10 dated 1571989 Ex. PL was recorded. On the basis of the said report offence was converted from under Section 307 IPC to 302 IPC. Dr. A.P. Sharma, PW2, on 1671989 conducted the postmortem examination on the dead body of Smt. Kamala and found as under :

"It was a dead body of moderately built and nourished, young female not wearing any clothes, having bandages all over the body except head and neck and having a yellow metal nose pin on left side of nostril. Rigor mortise was present in all four limbs. There were superficial to deep burns all over face, neck, front of chest and abdomen, back, both upper and both lower limps. Scalp and pubic hair partially burnt. Skin was peeled off at most of places. There was yellowish green slough and unhealthy granulation was present at places. There was red line of demarcation between burnt and healthy areas. The burns were approximate 100% infected."

He opined that the cause of death was shock due to extensive burns and its complications. Burns were antemortem and were sufficient to cause death in ordinary course of nature.

After completion of the investigation, the accused was arraigned for trial on such like allegations for the murder of Smt. Kamala.

Before the trial Court, in order to prove its above referred case, the prosecution examined eight witnesses.

The accused when examined by the trial Court under Section 313, Code of Criminal Procedure, came forth with the plea of denial simplicitor and false implication.

The accused appellant, however, did not lead any evidence in defence despite being called upon to do so by the trial Court.

The conviction of the accused has been rested mainly on dying declaration of the deceased Ex. PJ recorded by Shri Subhash Goyal, Judicial Magistrate Ist Class, Rohtak PW8 coupled with the evidence of three medical men Dr. Shiva Mathur, PW1 Dr. A.P. Sharma PW2 and Dr. Arun Gera PW3. In addition thereto reliance is placed on the evidence of Dilbag Singh PW10, brother of the deceased.

We have heard the learned counsel for the parties besides perusing the record.

Learned counsel for the appellant has vehemently argued that motherinlaw of the deceased who is alleged to have extinguished the fire, removed the deceased and got her admitted in hospital has not been examined for the obvious reasons and, therefore, it was not safe to base conviction of the accused on the dying declaration. We do not find any force in this submission. it was not expected from the mother of the accused to have deposed against him and, therefore, the prosecution has rightly not examined her. The deceased was burnt in the house of the accused around about 9.00 p.m. on 1071989. Soon after her admission in the ward Dr. Arun Gera PW13 sent ruqa Ex. PD to the Police asking them to make arrangements for getting her statement recorded.

V.T. Message Ex. p.m. was flashed at 3.00 a.m. on 1171989. Sub Inspector Gian Chand PW11 on receipt of the said V.T. message went to Police Post Medical Colelge Hospital, Rohtak, obtained the copy of the Medico Legal Report of Smt. Kamala as also the ruqa of MHC. He then went to the hospital and moved application Ex. PN for obtaining the medical opinion with regard to the fitness fo Smt. Kamala to make a statement. The medical opinon obtained was in negative. He then went to the place of occurrence and after making arrangements for securing the spot returned back to Police Post, Medical College Hospital, Rohtak where he collected medical ruqa Exd. PT asking for making arrengement for recording of statement of the patient by Chief Judicial Magistrate as early as possible. The Inspector then went to the Court of Chief Judicial Magistrate Rohtak, to do the needful. The Sub Inspector then accompanied the Magistrate to the hospital. Persual fo the testimony of Mr. Subhash Goyal PW8 shows that when he reached the ward he found Smt. Anaro Devi motherinlaw of Smt. Kamala sitting by her bed side. She was sent outside the ward and then he had recorded the statement of Smt. Kamala Ex. PJ. Thus it is evident that till the statement Ex. PJ of Smt. Kamala was recorded by learned Magistrate nobody had any opportunity to talk to her except Smt. Anaro Devi who was none else but the mother of he accused who was not expected to prompt the deceased against her son. Dilbag Singh PW10 brother of the deceased has stated that on 1271989 on being informed by a constable, he accompanied his father from village Katwal to Police Station City Rohtak and therefrom to Medical College Hospital, Rohtak.It is clear that the brother and father and other relatives of the deceased had no opportunity to prompt her prior to tbe recording of her statement Ex. PJ.

It is then urged by the learned counsel for the appellant that persual of the application Ex. PW medical opinion thereon Ex. PN/1 and the testimony of Dr. Arun Gera PW13 shows that Smt. Kamala was not fit to make a statement at 6.00 a.m. on 1171989 putting statement Ex. PJ into service, the learned counsel for the appellant has argued that this statement was completed by the Magistrate at 11.10 a.m. but there is not even an iota of evidence on recorded to show that Smt. Kamala was not fit to make a statement between 6.00 a.m. to 11.10 a.m. on 1171989 and secondly that even if she had becoem fit there was an ample opportunity to record her statement thereby implicating the accused. This argument attractive at first sight, is in our opinion, not tenable on the sound appreciation of the evidence on record and circumstances prevailing at the relevant time. As mentioned hereinbefore except Smt. Anaro Devi mother of the accused none else had an opportunity to talk to her till the arrival of the Magistrate. Her brother and father and other relatives had reached the hospital on the next day i.e. 1271989. Coming to the other aspect of the argument we find that the learned Magistrate had appended a certificate Ex. PJ/2 on the said statement Ex. PJ which reads as under :

"Certificate that the patient remained conscious throughout in the time her statement was recorded and deposed out of her free well."

Dr. Arun Gera PW13 was present at the time of her statement which fact is evidenced from endorsement Ex. PJ/4 recorded on the statement Ex. PJ in the following terms :

"Both the thumbs are burnt, so unable to take thumb impression.

Sd/

H/S 4/II."

This doctor had sent ruqa Ex. PT requesting the police for making arrangements for getting the statement of Smt. Kamla recorded by Duty Judicial Magistrate Ist Class, Rohtak on 1171989. He would not have sent this ruqa had she not been able to make a statement. In any case this doctor had stated in unambiguous terms that when he made endorsement Ex. PJ/4 Smt. Kamla was fit to make a statement. Simply because there is no written opinion of the doctor that she was fit to make a statement the dying declaration cannot be discarded on such a slander ground.

Next it is submitted by the learned counsel for the appellant that the statement Ex. PJ Smt. Kamla has stated that her motherinlaw had extinguished the fire by covering her body with durry and if it was so the said durry must have received burning marks. Since the said durry was not found lying at the spot and was not seized by the Investigating Officer, it renders the satement doubtful. We do not find any merit in argument. After extinguishing the fire anxiety of Smt. Anaro Devi was to remove Smt. Kamla to, and get her admitted in the hospital as early as possible and in that huffhuff if she had removed the durry from her body and placed it somewhere else while removing her to hospital, it would not be available at the spot. In any case, nonseizure of the said durry from the place of occurrence by the Investigating Officer would not in any way cast a cloud of doubt on the statement Ex. PJ of Smt. Kamla.

It is submitted by the learned counsel for the appellant that neither the signatures nor thumb impression was obtained by the Magistrate on her statement Ex. PJ and therefore, no value can be attached to it. We regret our inability to agree with this argument. The perusal of statement Ex. PJ shows that Dr. Gera and the Magistrate have appended endorsements on the footing of the said statement to the effect that both the thumbs of Smt. Kamla have been burnt and, therefore, it was not possible to obtain her thumb impression on her statement. Dr. Gera as well as Mr. Subhash Goyal, Judicial Magistrate Ist Class, Rohtak have been crossexamined on behalf of the appellant. It was not suggested to either of them that he was in any way inimical towards the accused and, therefore, it cannot be said that they had any motive to falsely implicate the accused.

Lastly, it has been urged on behalf of the appellant that since the statement had not been recorded in question answer form it should not be believed. This argument also does no carry conviction with use. We do not find any infirmity in the dying declaration on this count. Its perusal shows that it is brief and to the point without involving her motherinlaw. Smt. Kamla has stated what had actually happened. The sum and substance of her statement was that her husband, the accused had poured kerosene oil upon her and flamed her. The statement Ex. PJ finds corroboration in the statement of Dilbag Singh PW 10 brother of the deceased the relevant portion whereof is as under :

"On 1271989, a constable came to us and I along with my father started for Rohtak. We came to the Police Station City, Rohtak. From the Police Station City, we went to the Medical College. there we saw that my sister Kamla has been burnt badly. My sister told me that she has been set on fire by her husband Subhash. Then we came to the Police Station City, Rohtak....."

Statement Ex. PJ was recorded at 11.10 a.m. on 1171989, Smt. Kamla had died in the Medical College Hospital, Rohtak on 1271989 at 10.20 a.m. as is evident from ruqa Ex. PA. Postmortem on her dead was performed by Dr. A.P. Sharma PW2. This testimony has been discussed in very many details in the earlier part of this judgment. He had found superficial to deep burns all over face, neck, front of chest and abdomen, back, both upper and both lower limbs. Scalp and pubic hair were partially burnt and skin was peeled off at most of places. There was yellowish green slough and unhealthy granulation was present at places. There was red line of demarcation between burnt and healthy areas. The burns were approximate 100% and infected. The Autopsy Surgeon had found that the cause of death was due to extensive burns and its complications. Burns were antemortem and were sufficient to cause death in ordinary course of nature.

Perusal of the statement of Dilbag Singh PW 10 brother of the deceased shows that the relations between the deceased and her husband, the accused had strained about 2 1/2 years after the marriage. He had started beating her and once had turned her out of her matrimonial home and did not take care of her for a period of two years when she resided at her parental house and thereafter she rejoined home on the intervention of the Panchayat of the brotherhood. Even thereafter quarrels took place between the two so much so that Smt. Kamla was detained in a locked room by the accused. When the parents and brother of Smt. Kamla came to know about her being tortured by the accused they brought the matter to the notice of the police. Thus, it is clear that the accused was having strained relations with the deceased. From the dying declaration Ex. PJ it is clear that on the day of occurrence the accused had returned to his house under the influence of liquor and started beating his daughter Pinki and when Smt. kamla tried to stop him, he threatened to kill her also. All this shows that the accused had immediate motive also to burn her alive.

From the above scrutiny of evidence on record, we are satisfied that the dying declaration Ex. PJ is wholly viable. It is true and free from any attempt to prompt the deceased to make it. This statement Ex. PJ of the dying person namely, Smt. Kamla, passes the test of careful scrutiny applied by us and to our minds it is a most reliable piece of evidence which does not even require any corroboration. Therefore, there was no legal impediment in basing the conviction on the said dying declaration by the learned trial Court. We affirm its findings.

Sequally we do not find any fault with the well founded judgment of conviction and order of sentence passed by the learned trial Court which is impugned in this appeal. Consequently, the appeal fails and is hereby dismissed.