Crl.Misc. No.A. 216-MA of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc. No.A. 216-MA of 2009 DATE OF DECISION: MARCH 15, 2010 State of Haryana .....APPLICANT Versus Surender @ Shailender ....RESPONDENT CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE JORA SINGH --- Present: Mr.Satbir Singh Goripuria, D.A.G., Haryana, for the applicant. Mr. Sanjay Vashisht, Advocate, for the respondent. .. SATISH KUMAR MITTAL, J. The State of Haryana has filed this application for grant of leave to appeal under Section 378(3) Cr. P.C. against the judgment dated 23.12.2008 passed by Sessions Judge, Bhiwani, whereby respondent Surender @ Shailender has been acquitted of the charge under Sections 302/307 IPC. In the present case, respondent Surender @ Shailender was tried by the Court of Session for committing the murder of his wife Kaushalya by sprinkling kerosene oil on her and setting her on fire at her matrimonial home. In this case, the occurrence had taken place at 2.00 p.m. on 20.8.2007. The husband (respondent) extinguished the fire. He also received burn injuries on his fore-arms. He had taken the injured wife to Crl.Misc. No.A. 216-MA of 2009 -2- the hospital. On receipt of medical ruqa (Ex.P25), the police also came to the hospital. An application was moved before the doctor about the fitness of the injured to make statement. As per opinion (Ex.D1) of the doctor, the patient was declared fit to make statement. Thereafter, the Duty Magistrate was called to record the statement under Section 164 Cr.P.C. Shri Rajeev Goyal, JMIC, recorded the statement of the injured in which she stated that at 2.00 p.m. when she was burning the stove to prepare tea, the stove burst and she got fire accidentally. On hearing her noise, her husband came and put off the fire and got her admitted in the hospital. Nobody was at fault. After four days of the occurrence, the police moved an application before the doctor, PGIMS, Rohtak, where the injured was shifted, and after obtaining the certificate from the doctor about fitness of the injured to make statement, called Duty Magistrate, Rohtak to record the statement. Then Shri Chander Hass, JMIC recorded the statement of the injured (Ex.P27) in which she stated that on 20.8.2007 at about 2.00/2.30 p.m. her husband was drunk. He removed his clothes and threatened to set himself at fire. Thereafter, he brought a Can containing kerosene oil. Instead of pouring kerosene oil upon himself, he poured the same upon her and set her on fire. On hearing the noise, neighbourers came to the spot and put off the fire. Thereafter, her husband Surender brought her to the hospital. She had further stated that her previous statement was given under pressure of her in-laws. On the basis of the above-said statement, the formal FIR (Ex.P8) was registered against the respondent under Section 307 IPC. Subsequently, on 25.8.2007, she had died. On her death, the case was converted into under Section 302 IPC. The dead body was sent for post Crl.Misc. No.A. 216-MA of 2009 -3- mortem examination along with inquest report. Dr. Sanjay Kumar conducted autopsy of the deceased and in his opinion the cause of death was due to burns and their complications. During investigation, on the disclosure statement made by the respondent, a plastic Can (Ex.P4) and some burnt clothes (Ex.P5) of his wife were got recovered, which were taken into possession vide recovery memo Ex.P3. In support of its case, the prosecution examined 13 witnesses, including PW8-Dr. S.S. Dhankhar, Medical Officer, General Hospital Bhiwani, who medico-legally examined the injured and reported that there were 72 to 80% superficial and deep burns all over the body. He sent ruqa to the police about admission of the injured. He has also medico-legally examined respondent Surender on the same day at about 3.45 p.m. He has proved his MLR as Ex.D2, according to which, he was having burn injuries on both fore-arms. He has also proved his Bed Head Ticket as Ex.D3. PW9- Ram Snehi, the cousin of the deceased, in whose presence the disclosure statement was made by the respondent and on the basis of which the Can of kerosene oil and half burnt clothes of the deceased were recovered. PW10- Shri Chander Hass, JMIC, Rohtak, who recorded the second statement (Ex.P27) of the injured on 24.8.2007. PW12-Dr. Parvinder, Medical Officer, PGIMS, Rohtak, who gave opinion about the fitness of the injured at PGIMS, Rohtak on 24.8.2007. PW13-Dr.Sanjay Kumar, who conducted the autopsy of the deceased and gave the opinion with regard to cause of death due to burns described and their complications. In his statement recorded under Section 313 Cr.P.C., the respondent denied all the incriminating evidence put to him and took the Crl.Misc. No.A. 216-MA of 2009 -4- stand that he was falsely implicated in this case. In defence, the accused examined Dr. R.P. Sharma as DW1, who proved the discharge certificate of the respondent. As per the statement of this witness, respondent was admitted in the hospital on 20.8.2007 and was discharged on 29.8.2007. EHC Bal Kishan as DW2 and Mahender Singh Yadav as DW3. He has also examined Shri Rajeev Goyal, JMIC as DW4, who recorded the first statement (Ex.D10) of the deceased and got proved the first statement of the deceased. After considering the evidence available on the record, the trial Court acquitted the respondent from the charges under Section 302/307 IPC while coming to the conclusion that the second statement made by the deceased was not reliable at all, as the same was made after four days of the occurrence at the instance and tutoring of her parents. The evidence of extra-judicial confession was also held to be of doubtful nature. Against the said judgment, the State of Haryana has filed the instant application for grant of leave to appeal. We have heard Shri Satbir Singh Goripuria, learned Deputy Advocate General, Haryana for the applicant and Shri Sanjay Vashisht, learned counsel for the respondent, and gone through the record of the trial Court. In our opinion, the trial Court has properly appreciated the evidence led by the prosecution and thereafter has rightly come to the conclusion that the prosecution has miserably failed to bring home the guilt against the respondent beyond a shadow of doubt. The entire case of the prosecution rests upon the second dying declaration made by the deceased. In the first dying declaration, which was also recorded by the JMIC, the Crl.Misc. No.A. 216-MA of 2009 -5- deceased had categorically stated that she had got fire due to bursting of the stove by accident. The said statement was recorded by Shri Rajeev Goyal, JMIC after obtaining the opinion of the doctor about the fitness of the injured to make statement. The said JMIC has been produced by the respondent as defence witness. He has categorically stated that after obtaining opinion of the doctor, he had recorded the said statement. At that time the deceased was fully conscious to make statement and she voluntarily made that statement. The second statement was recorded by Shri Chander Hass, JMIC, but the said statement was recorded after four days of the occurrence. In the second statement, the deceased had stated that her previous statement was made under pressure of her in-laws, but the prosecution has failed to prove the said fact. It has come in evidence that when the first statement was recorded, not only the in-laws but the parents of the deceased were also present. Secondly, the trial Court has also come to the conclusion that the version given in the second statement is not corroborating with the other evidence available on the record, particularly the medical evidence. As per the second statement, her husband was drunk. He removed his clothes and threatened to set himself at fire. Thereafter, he brought a Can containing kerosene oil. Instead of pouring kerosene oil upon himself, he poured the same upon her and set her on fire. On hearing the noise, neighbourers came to the spot and put off the fire. In our opinion, the second version is not corroborating with the medical evidence. If the second version is taken to be correct, then it has not been explained by the prosecution how the respondent received burn injuries on both his fore- arms. For those injuries, he remained admitted in the hospital for seven days. Ex.D2 is the Bed Head Ticket. In the said document, it is nowhere Crl.Misc. No.A. 216-MA of 2009 -6- mentioned that the smell of alcohol was found coming from the mouth of the injured. DW1, who treated the husband, did not state anything about smell of alcohol coming from his mouth. According to the first statement, the husband put off the fire and then admitted her to the hospital. In the first statement, she admitted that her husband got her admitted in the hospital, but according to the second statement, the husband did not put off the fire. It has been proved on record that in the said occurrence, the husband also received burn injuries on his fore-arms. The trial Court after detailed discussion on the aspect has come to the conclusion that the first statement made by the deceased was her voluntary statement and at that time she was not under pressure of anyone. However, the second statement, which was made after four days of the occurrence in presence of parents of the deceased was held to be doubtful and not reliable. It was found that there was every likelihood of tutoring to the deceased before making statement to the Magistrate. While coming to the aforesaid reasoning, the trial Court disbelieved the second statement made by the deceased. After going through the impugned judgment and the evidence, we do not find that there was any illegality or perversity in the aforesaid conclusion arrived at by the trial Court. In this case, there is no allegation of mal treatment to the deceased on account of demand of dowry. No motive has been alleged by the prosecution for committing the murder of the deceased. That is why, even no charge under Sections 498-A or 304-B IPC was framed against the accused, though death had taken place within seven years of the marriage. The case of the prosecution is based upon only on the second statement of the deceased, which is not reliable and was not voluntarily made. Crl.Misc. No.A. 216-MA of 2009 -7- The trial Court has separately discussed the evidence of extra- judicial confession made by the accused before PW11-Sanjay on 11.9.2007. In the said extra-judicial confession, it was stated by the respondent that he had done a wrong act. It was not stated that the wrong act was committed by him. He had not exactly explained what he had done and in which manner. The trial Court while considering the said aspect has come to the conclusion that on the basis of such extra-judicial confession, which is a weak type of evidence, and is not corroborated by any independent evidence, it was not safe to rely upon the same. We also do not find any illegality in the said conclusion arrived at by the trial Court. In our opinion, the view taken by the trial Court in the case, on the basis of the evidence led by the prosecution, is the only possible view and no second view can be taken. In view of the above, we do not find any ground to grant leave to appeal against the judgment dated 23.12.2008 passed by Sessions Judge, Bhiwani. Hence, the application is dismissed. (SATISH KUMAR MITTAL) JUDGE March 15, 2010 ( JORA SINGH ) vkg JUDGE