RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 68 of 2007 Pushkar Dutt .…. Appellant/Convict Versus State of Uttarakhand …………… Respondent Mr. V.S. Pal, Advocate for the appellant/convict. Mr. Prabhakar Joshi, Brief Holder for the State/respondent. ……………………… Dated: November 25, 2009 Coram: Hon. B.C. Kandpal, J. Hon. Dharam Veer, J. Judgment: Per Hon. Dharam Veer, J. This appeal, preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 4.6.2002 passed by the Sessions Judge, Pithoragarh in Sessions Trial No. 58 of 1999, State v. Pushkar Dutt, whereby learned Sessions Judge has convicted the accused appellant Pushkar Dutt under Section 302 and 309 of Indian Penal Code, 1860 (for short, IPC) and sentenced him to life imprisonment under Section 302 IPC and one year’s simple imprisonment under Section 309 IPC. However, the appellant was acquitted of the charges levelled against him under Section 323 IPC. 2. In brief, the prosecution case is that PW3 Hari Dutt Bhatt lodged an FIR Ex. Ka-4 on 23.10.1999 at 10.50 am with the averments that at about 11 pm in the previous night the accused appellant Pushkar Dutt was under the influence of alcohol, who hurled abuses on his wife Smt. Pushpa Devi and also beaten her. With an intention to commit suicide he poured kerosene oil over his body as well as on the body of his son Deepak Bhatt saying that he was beloved of him and he would take him with himself and tried to lit up the fire. Several times he burnt the matches but his wife extinguished the same and raised the alarm. Thereafter many villagers assembled there and after making the accused appellant understand, they returned to their houses. Thereafter at 12 pm, the accused appellant set himself on fire by striking the match with intention to commit suicide. He also set his son Deepak Bhatt on fire with intention to kill him. His wife Smt. Pushpa Devi also came under fire when she tried to put out the fire. His wife Pushpa Devi raised the alarm upon which many villagers came at the place of occurrence and tried to save them. Villagers tried to take them to hospital but the accused appellant refused to go to the hospital and even did not allow the villagers to take his wife and son to the hospital. His three years’ old son Deepak Bhatt died on the spot whose dead body was lying there. Injured were also lying in the village. 3. On the basis of the FIR Ex. Ka-4, chick FIR Ex. Ka-6 was prepared on the same day i.e. on 23.10.1999 by Constable Clerk Balkishan. Necessary entries were made by him in the GD. Copy of GD is Ex. Ka-7. The investigation of this case was done by Station Officer R.S. Gautam, who went to the place of occurrence on 23.10.1999 and sent the injured Pushkar Dutt and his wife Pushpa Devi to the hospital with the help of the villagers. They were examined by PW1 Dr. P.N. Singh on the same day and prepared the medical reports of the injuries of the accused appellant Pushkar Dutt and his wife Smt. Pushpa Devi, Ex. Ka-1 and Ka-2 respectively. After reaching at the place of occurrence, the I.O. took into possession the dead body of Deepak Bhatt and prepared 2 the inquest report Ex. Ka-8. Thereafter he also prepared letter to CMS, Pithoragarh for conducting the post mortem, police form no. 13, photo lash and namoona mohar at the spot which are Ex. Ka-9 to Ka-12 respectively. The post mortem of the dead body of Deepak Bhatt was conducted on 24.10.1999 at 3.30 pm by PW2 Dr. Narendra Sharma, who prepared the post mortem report Ex. Ka-3. The I.O. took into possession a white jerrycan containing nearly one litre kerosene oil and prepared the fard Ex. Ka-13. He also took into possession the clothe wet with the kerosene oil and piece of bedding and quilt and prepared the fard Ex. Ka-14. Matchbox and burnt matches were also taken into possession by him and fard Ex. Ka-5 was prepared. The I.O. prepared the site plan Ex. Ka-15 of the place of occurrence on the pointing out of the witnesses present on the spot. He recorded the statement of Smt. Pushpa Devi on 27.10.1999 at B.D. Pandey District Hospital, Pithoragarh who died subsequently. Her statement is Ex. Ka-16. During the course of investigation, he recorded the statements of the witnesses and after completing the investigation, he filed the chargesheet Ex. Ka-17 against the accused appellant. 4. Learned Judicial Magistrate, Didihat, Distt. Pithoragarh after giving the necessary copies of the documents to the accused appellant as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 18.12.1999. 5. On 31.1.2000, learned Sessions Judge, Pithoragarh framed the charges against the accused appellant under Sections 302, 309 and 323 IPC. The charges were read over and explained to the accused appellant, who pleaded not guilty and claimed to be tried. 3 6. To prove its case, the prosecution has examined PW1 Dr. P.N. Singh, who had examined the accused appellant and his wife and prepared the medical reports of the injuries Ex. Ka-1 and Ka-2 respectively; PW2 Dr. Narendra Sharma, who conducted the autopsy on the dead body of Deepak Bhatt and prepared the post mortem report Ex. Ka-3; PW3 Hari Dutt Bhatt, the complainant and uncle of the accused appellant; PW4 Ganesh Dutt; PW5 Janardan Kapri, father of the deceased Pushpa Devi and PW6 Station Officer R.S. Gautam, the I.O. of the case. 7. Thereafter, statement of the accused appellant was recorded under Section 313 CrPC. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated in the case. However, in defence, he did not produce any documentary or oral evidence. 8. After hearing learned counsel for the parties and after appreciating the evidence available on record, learned Sessions Judge, Pithoragarh vide his judgment and order dated 4.6.2002 convicted and sentenced to the appellant accused as discussed above. Against the aforesaid judgment and order dated 4.6.2002, the convict appellant has preferred the present appeal. 9. We have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 10. Before any further discussion, it would pertinent to mention the injuries found on the body of accused appellant Pushkar Dutt and his wife Smt. Pushpa Devi who were examined by PW1 Dr. P.N. Singh on 23.10.1999 4 at 6.20 pm and 6.15 pm respectively and prepared the medical reports Ex. Ka-1 and Ka-2 respectively and the same are reproduced below: Injuries found on the body of accused appellant Pushkar Dutt as recorded in Ex. Ka-1 : “There is deep to superficial thermal burn injuries involving whole of skull, left side of face and neck. Nape of neck extending up to inter scapular region, both side of chest up to ziphi sternum, both sides of palm. Opinion : There is deep to superficial thermal burn injury, approximately 30-35 per cent. Case admitted under Surgeon side for better management.” Injuries found on the body of Smt. Pushpa Devi as recorded in Ex. Ka-2 : “Thermal burn injury deep to superficial in nature involving both side of palm (Both Exterior and flexor surface). Burn injury involving lower part abdomen including pubic area, thigh on both side. B/L up to the knee joint on both side. On left side the burn injury extended below knee joint involving skin of tibia. Opinion : Thee is deep to superficial thermal burn injury approximately 30-35 per cent including both palm, thighs both surface, lower abdomen. The case admitted under Surgeon side for better management.” 11. To prove the aforesaid medical reports Ex. Ka-1 and Ka-2, the prosecution has examined PW1 Dr. P.N. Singh, who has proved the contents of the same and has stated 5 about the duration of the injuries sustained by the accused appellant and his wife Smt. Pushpa Devi that these injuries could have definitely been caused more than 12-14 hours ago. It is noteworthy to mention here that he had examined the accused appellant Pushkar Dutt and his wife Smt. Pushpa Devi on 23.10.1999 at 6.20 pm and 6.15 pm respectively and the said incident is alleged to have taken place at 12 pm in the night of 22.10.1999. Thus, the prosecution story stands corroborated by the deposition of this witness. 12. It would also be pertinent to mention here the ante mortem injuries found on the body of the deceased Deepak Bhatt at the time of post mortem examination on 24.10.1999 at 3.30 pm, which were recorded by PW2 Dr. Narendra Sharma in the post mortem report Ex. Ka-3 and the same are reproduced as below: “Superficial to deep burn whole body except a part over lower back and right ankle foot. Skin is peeled off both hands redness present over whole body, blackening of both ears, loss of hairs over scalp & eye brows, large vesicles present over scalp, charring of skin present. Body arranged in pugilistic attitude. Genitals – loss of skin at scrotum and penis. Duration & cause of death : About 1 to 2 days back. Cause of death shock due to ante mortem burn.” 13. To prove the aforesaid post mortem report Ex. Ka-3, the prosecution has examined PW2 Dr. Narendra Sharma, who has proved the contents of the same and has stated that the burn injuries sustained by the deceased Deepak Bhatt were sufficient for his death and he died due to those burn injuries. His death could have occurred at 12 pm in the intervening night of 22.10.1999 and 23.10.1999. 6 14. To further prove its case, the prosecution has examined PW3 Hari Dutt Bhatt, the complainant and uncle of the accused appellant, who has stated that he reached at the place of occurrence after hearing the noise when the incident started at 11 pm on 22.10.1999. Ganesh Dutt, Master Devi Dutt, Jagdish Chandra, etc. from the neighbourhood also reached there. The accused appellant was present in his house along with his wife Pushpa Devi and children. He was quarrelling with his wife. He had poured kerosene oil over his body. He told that he would commit suicide and since his son Deepak was beloved of him, therefore, he would die along with him. When the villagers made him understand not to do so, then he agreed and requested them to return. Thereafter this witness returned to his house which was situated at a distance of nearly 10-15 steps from the house of the accused appellant. He brought the wife and children of the accused appellant at his own house, who slept in the outer room of his house while he was sleeping in the inner room. When at about 12-1 in the night, Pushpa raised the alarm then he saw that she was coming out of her house being lit up with fire. She was shouting “Deepak jal gaya – Deepak jal gaya.” She went to the house of Ganesh (PW4). Thereafter this witness went to the house of the accused appellant where he saw that both the accused appellant and his son Deepak Bhatt were blazing in the fire. Besides him, many people from the neighbourhood had gathered there. They put out the fire but Deepak was totally burnt and died after 2-3 hours. They tried to bring him to the hospital, but nobody dared to do so because of the threat held out by the accused appellant. He got the report Ex. Ka-4 scribed by Pradeep Bhatt in the next morning and lodged the same after putting his signature on it. He brought the accused appellant and his wife Pushpa Devi to the hospital at 7 Didihat from where they were referred to District Hospital, Pithoragarh. Smt. Pushpa Devi was discharged from the hospital after 7-8 days and thereafter he had brought her to his house, but she was not totally cured. Her father Janardan Kapri (PW5) had brought her to Nainital for further treatment but she could not be cured and died in the hospital. This witness was cross-examined at length by the defence counsel but he could not be shaken. 15. PW4 Ganesh Dutt has corroborated the statement of PW3 Hari Dutt Bhatt. He also could not be shaken in his cross-examination. 16. PW5 Janardan Kapri, father of the deceased wife of the accused appellant has stated in his deposition that her daughter got married with the accused appellant about 10 to 11 years ago. Accused appellant used to treat her badly. He used to beat her since the very beginning. They were on loggerheads with each other. The accused appellant was working in Ludhiana before this incident. His daughter had complained to him about the behaviour of the accused appellant. He received an information on 23.10.1999 that his daughter and son-in-law had got burnt and his grandson (Nati) Deepak Bhatt had died. Thereafter he went to the house of the accused appellant in village Bastari along with Khilanand Kapri where he saw that the child (Deepak Bhatt) was burnt and lying dead. His daughter Pushpa Devi and his son-in-law (accused appellant) were also injured with the burn injuries. When he asked his daughter about the incident, then she told him that the accused appellant had set the fire because of which Deepak Bhatt died. She further told him that first of all quarrel took place between them, the accused appellant beaten her and said that he would also die as well as kill other family members by setting them on 8 fire. He has further stated that when her daughter asked him to send her somewhere outside for treatment, then he admitted her at District Hospital, Nainital. His another son-in-law Shankar Dutt Sharma was posted as Pharmacist in the said hospital. His daughter died after one month in the hospital. He has further stated that he was also among the Panches appointed in the Panchayatnama of deceased Deepak Bhatt and he had also signed on that. This witness was cross-examined at length by the defence counsel but nothing has come out which may create any doubt about his deposition. 17. PW6 R.S. Gautam, the I.O. of the case has stated that on 23.10.1999, he was posted as Station Officer of PS Askot, Didihat, District Pithoragarh. On that day, at 10.50 am Constable Clerk Balkishan had prepared the chick FIR Ex. Ka-6 on the basis of the FIR (Ex. Ka-4) lodged by Hari Dutt (PW3) against the accused appellant and had also made the necessary entries in the GD, copy of which is Ex. 7. This witness has further stated that he went to the place of occurrence in village Bastari on the same day i.e. on 23.10.1999 and sent the injured Pushkar Dutt and his wife Pushpa Devi to the hospital with the help of the villagers. He took into possession the dead body of Deepak Bhatt from the villagers. Thereafter he prepared the inquest report Ex. Ka-8 of the dead body of Deepak Bhatt. Thereafter he also prepared letter to CMS, Pithoragarh for conducting the post mortem, police form no.13, photo lash and namoona mohar at the spot which are Ex. Ka-9 to Ka- 12 respectively. He has further stated that he took into his possession a white jerrycan containing nearly one litre kerosene oil and prepared the fard Ex. Ka-13 on the spot. He also took into possession the clothe wet with the kerosene oil and piece of bedding and quilt and prepared the fard Ex. Ka-14. Matchbox and burnt matches were 9 also taken into possession by him and fard Ex. Ka-5 was prepared. He also prepared the site plan Ex. Ka-15 of the place of occurrence on the pointing out of the witnesses present on the spot. He recorded the statement of Smt. Pushpa Devi on 27.10.1999 at B.D. Pandey District Hospital, Pithoragarh who died later on. Her statement is Ex. Ka-16. This witness has identified the piece of bedding, quilt and a white undershirt as material Ex. 1, 2 & 3 respectively. He also identified the white jerrycan containing some kerosene oil as material Ex. 5. During the course of investigation, he recorded the statements of the witnesses and after completing the investigation, he filed the chargesheet Ex. Ka-17 against the accused appellant. 18. Thereafter, statement of the accused appellant was recorded under Section 313 CrPC. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated in the case. However, in defence, he did not produce any documentary or oral evidence. 19. Learned Counsel for the accused appellant argued that on the basis of the evidence discussed above, the prosecution has failed to prove its case against the accused appellant beyond reasonable doubt and he is entitled to get the benefit of doubt. We do not find any force in the argument of learned Counsel for the appellant for the reasons discussed below. 20. PW3 Hari Dutt Bhatt, the complainant and an eyewitness of the incident, has stated that his house was situated at a distance of nearly 10-15 steps from the house of the accused appellant. He reached at the place of occurrence after hearing the noise when the incident 10 started at 11 pm on 22.10.1999. Ganesh Dutt (PW4), Master Devi Dutt, Jagdish Chandra, etc. from the neighbourhood also reached there. The accused appellant was present in his house along with his wife Pushpa Devi and children. He was quarrelling with his wife. He had poured kerosene oil over his body. He told that he would commit suicide and since his Deepak was very beloved of him, therefore, he would die along with him. When the villagers made him understand not to do so, then he agreed and requested them to return. Thereafter this witness returned to his house. He also brought with himself the wife and children of the accused appellant, who slept on the outer room of his house while he was sleeping in the inner room. When at about 12-1 in the night, Smt. Pushpa Devi raised the alarm then he saw that she was coming out of her house being lit up in fire. She was shouting “Deepak jal gaya – Deepak jal gaya.” She went to the house of Ganesh (PW4). Thereafter this witness went to the house of the accused appellant where he saw that both the accused appellant and his son Deepak were blazing in the fire. Besides him, many people from the neighbourhood had gathered there. They put out the fire but Deepak was totally burnt and died after 2-3 hours. They tried to bring him to the hospital, but nobody dared to do so because of the threat held out by the accused appellant. Thereafter he got the report Ex. Ka-4 scribed by Pradeep Bhatt in the next morning and lodged it in the police station. He brought the accused appellant and his wife Pushpa to the hospital at Didihat from where they were referred to District Hospital, Pithoragarh. Smt. Pushpa Devi was discharged from the hospital after 7-8 days and thereafter he had brought her to his house, but she was not totally cured. Her father Janardan Kapri (PW5) had brought her to Nainital for further treatment but she could not be cured and died in the hospital. This 11 witness was cross-examined at length by the defence counsel but he could not be shaken. 21. As has been stated by PW6 R.S. Gautam that during the course of investigation, he had recorded the statement of injured Smt. Pushpa Devi, who died subsequently and, therefore, her statement has been placed on record as Ex. Ka-16. The deposition of the complainant Hari Dutt Bhatt (PW3) is corroborated by the statement of Smt. Pushpa Devi contained in Ex. Ka-16. In her statement given to PW6 R.S. Gautam, deceased Pushpa Devi has stated that the accused appellant was an alcoholic. On the date of the incident i.e. on 22.10.1999, the accused appellant consumed liquor. Since he was under the great influence of alcohol, he poured the kerosene oil over himself and tried to set himself on fire by striking a match. She put out the match and snatched the matchbox from him and raised the alarm after opening the door. Thereafter many villagers came there who intervened and after sometime they returned to their houses. Due to the fear, she along with her children went to the house of Hari Dutt (PW3), uncle of the accused appellant to sleep. She had also brought Deepak Bhatt with herself, who always used to sleep along with the accused appellant. The door was closed. The accused appellant came and knocked the door and said that Deepak Bhatt would sleep with him. Upon this she opened the door and thereafter the accused appellant took away Deepak from there leaving the door opened. Thereafter her husband i.e. the accused appellant with intention to commit suicide set himself on fire. Deepak was also set on fire by the accused appellant with intention to kill him. When she saw the flames of fire, she immediately reached there and raised the alarm as well. She saw that her husband and her son Deepak Bhatt were burning inside the room. She tried to put out the fire of 12 Deepak Bhatt and in this process she herself came under the fire. The incident happened at about 12 pm in the night. Thereafter Hari Dutt (PW3), the complainant also reached there and tried to put out the fire of the accused appellant who was burning inside the room. When she herself came under fire, then she ran outside the house in order to save herself. When for the first time the accused appellant had poured kerosene oil over his body and on the bedding, she had snatched the jerrycan containing the kerosene oil and threw it out. 22. The statement of complainant Hari Dutt Bhatt (PW3) finds further corroboration from the deposition of PW4 Ganesh Dutt. 23. The prosecution story is further supported by the deposition of PW5 Janardan Kapri, father of the deceased Pushpa Devi, who had reached at the place of occurrence on 23.10.1999, where he saw that the Deepak Bhatt was burnt and lying dead. His daughter Pushpa Devi and his son-in-law (accused appellant) were also injured with the burn injuries. When he asked his daughter about the incident, then she told him that the accused appellant had set the fire because of which Deepak Bhatt died. She further told him that first of all quarrel took place between them, the accused appellant beaten her and said that he would also die as well as kill other family members by setting them on fire. He has further stated that when her daughter asked him to send her somewhere outside for treatment, then he got admitted her at District Hospital, Nainital, where his elder son-in-law Shankar Dutt Sharma was posted as Pharmacist. His daughter died after one month in the hospital. This witness was cross-examined 13 at length by the defence counsel but nothing has come out which may create any doubt about his deposition. 24. Undisputedly, the deceased died due to burn injuries and the accused appellant and his wife Smt. Pushpa Devi also sustained burn injuries, when she tried to save his son Deepak Bhatt. Subsequently, Smt. Pushpa Devi succumbed to her injuries. The ocular evidence adduced by the prosecution is also supported by the medical evidence. The post mortem of the dead body was conducted by PW2 Dr. Narendra Sharma on 24.10.1999 at 3.30 pm and the post mortem report Ex. Ka-3 was prepared, wherein it has been clearly recorded that the deceased Deepak Bhatt died due to burn