Crl.Appeal No. 178-DB of 2005 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No. 178-DB of 2005 Date of decision: 2.8.2011 Rampal ... Appellant versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE S.S.SARON. HON'BLE MR. JUSTICE JORA SINGH. Present: Ms.Anju Arora, Advocate, for the appellant. Mr.H.S.Deol, Addl.AG, Haryana. ... JORA SINGH, J. Rampal, appellant, has filed this appeal against the judgment of conviction dated 22.1.2005 and order of sentence dated 24.1.2005 passed by the learned Additional Sessions Judge, Jhajjar, in Sessions Case No.31 of 1999, arising out of FIR No.112 dated 26.4.1999 under Section 302 of the Indian Penal Code (IPC-for short), PS Sadar, Bahadurgarh. By the impugned judgment, the appellant has been convicted for the offence punishable under Section 302 IPC and sentenced to undergo RI (rigorous imprisonment) for life and to pay a fine of Rs.5,000/- and in default of payment of fine, to further undergo RI for six months. Prosecution story, in brief, is that Jagdish, complainant, is the real brother of Santosh (deceased) wife of Rampal, appellant. On 26.4.1999, Jagdish presented a written complaint before the SHO, PS Sadar, Bahadurgarh, on the allegation that in the year 1977, Santosh (deceased) was married with Rampal, appellant. At that time, Rampal was serving in the Army. After retirement from the Army, the appellant was on pension and had started residing in his Village Soldha. He was addicted to liquor. In the year 1985, the appellant attempted to set Santosh, the sister of the complainant, on fire. The incident was brought to the notice of the Crl.Appeal No. 178-DB of 2005 2 complainant by Santosh. Then the complainant along with his brothers Hari Ram and Rohtas had gone to Village Soldha on a motorcycle during night time. The appellant was found lying in the courtyard, whereas Santosh was inside the house and she had bolted the door from inside. All the three brothers after scaling over the wall had gone inside the house. Santosh was requested to open the door and they took their sister on the motorcycle to Basai. During this period, they also gave 2-3 slaps to the appellant. A can containing 5 lts. kerosene was noticed near the cot of the appellant. Santosh then stayed with them for about one year. Thereafter, the Panchayat of Village Soldha came to them and on the intervention of respectable persons, Santosh was sent to her in-laws house at Village Soldha. The appellant had misbehaved and ill treated Santosh during the period from 1985 to 1999. The complainant along with his brothers used to go to their house to bring about reconciliations between the appellant and Santosh. In the month of February, 1999 there was a marriage of the complainant's nephew and niece. The appellant refused to send Santosh to participate in the marriage celebrations. The elder sister of the appellant, namely, Risalo from Village Kharhar intervened and she sent her son Ranbir to accompany Santosh to participate in the marriage. On 23.2.1999, the elder brother of the complainant, namely, Hari Ram expired due to a heart attack. Relatives were to assemble at their house on 23rd of every month for a period of six months. Santosh requested the appellant to allow her to attend the function at her parental house but he did not allow her to visit her parental house and thrashed her. Santosh on this told the appellant that if she was not to be allowed to visit her parental house every month after the death of her brother, then her brothers would come to her house situated in Village Crl.Appeal No. 178-DB of 2005 3 Soldha and she will disclose every thing to them. Then the appellant told Santosh that before the arrival of her brothers, he would kill her. On the intervening night of 22/23.4.1999, while Santosh was sleeping she was set on fire by pouring kerosene oil on her. Santosh was admitted in PGIMS, Rohtak where she succumbed to her burn injuries on 23.4.1999. In view of the written complaint (Ex.PD), formal FIR (Ex.PD/1) was recorded. A photographer was arranged and photographs of the scene of crime were got taken. On 24.4.1999, a verbal transmission (VT) message was received from PGIMS, Rohtak regarding the death of Santosh. On receipt of the message, SI Hoshiar Singh went to PGIMS, Rohtak. Inquest report (Ex.PI) was prepared. Dead body of Santosh was handed over to the police officials for postmortem examination. On 27.4.1999, the appellant was arrested. The appellant suffered a disclosure statement and in pursuance thereof, he got recovered a can from the specified place. The recovered can was made into a sealed parcel. Sealed parcel was taken in police possession vide separate memo attested by the witnesses. On 28.4.1999 again on receipt of a VT message from PGIMS, Rohtak regarding the deaths of Nitu, Mohit and Poonam, children of the appellant as also Santosh, SI Hoshiar Singh went to the hospital and prepared inquest reports. After post mortem examinations, the dead bodies of the said children were handed over to the relations of the deceased for cremation. After completion of investigation, challan was presented in the Court. As the offence punishable under Section 302 IPC was exclusively triable by the Court of Session, therefore, the case was committed to the Court of Session for trial vide order dated 7.8.1999 passed by the learned Crl.Appeal No. 178-DB of 2005 4 JMIC, Bahadurgarh. After hearing learned PP for the State, learned counsel for the appellant and from the perusal of the documents on the file, the learned Additional Sessions Judge, Jhajjar, observed that a prima facie case was made out to frame a charge under Section 302 IPC against the appellant. Accordingly, charge under Section 302 IPC was framed against the appellant that he on 23.4.1999 at about 2/2.30 p.m. (sic. a.m.), in the area of Village Soldha did commit the murder by intentionally causing the death of his wife Santosh and three children namely Poonam aged 8 years, Mohit aged 3 years, who died on 27.4.1999, and Neetu aged 6 years who died on 28.4.1999. The appellant pleaded not guilty to the charge and claimed trial. In order to substantiate its case, the prosecution examined as many as 17 witnesses and also tendered documents in evidence. PW1 Ram Parkash on 28.4.1999 had identified the dead body of Mohit. PW2 Chattar Singh on 29.4.1999 had identified the dead body of Nitu. PW3 Samunder Singh is an agriculturist and on 27.4.1999 the appellant was interrogated in his presence. On interrogation, the appellant suffered a disclosure statement (Ex.PA) mentioning about the jeary can concealed by him and in pursuance thereof, he got recovered a can (Ex.P1) from the specified place. The recovered can was taken in police possession vide memo (Ex.PB), which was attested by him. PW4 MHC HC Jagdish Chander stated that on 27.4.1999, Siri Chand SHO (PW16) deposited with him a sealed parcel containing a plastic can bearing seal `SC' and the same was handed over to Constable Daya Crl.Appeal No. 178-DB of 2005 5 Chand for delivering it to the Director, FSL, Madhuban. After depositing the parcels with the Forensic Science Laboratory, Daya Chand handed over the FSL receipt to him. PW5 Constable Jai Chand prepared scaled site plan (Ex.PC) in the case. PW6 Constable Lakhi Ram had delivered special reports to the Ilaqa Magistrate (SDJM), Bahadurgarh, DSP, Bahadurgarh and SP, Jhajjar on 26.4.1999. PW7 Vijay Kumar, Photographer was shown the photographs (Ex.P1 to Ex.P4) of the place of alleged crime. He stated that he could not say whether copies of the said photographs were prepared and developed by him or not. On request of the learned Public Prosecutor he was declared hostile. In cross-examination, he stated that he did not remember having gone to the house of Rampal accused situated at Village Soldha on 26.4.1999 and taking snaps from his camera of any room in the house of the accused. He denied the suggestion that he took snaps and after developing copies, he retained the negatives with him. Thereafter, he (Vijay Kumar Photographer PW7) voluntarily stated that he handed over the negatives to the police as a matter of practice. He denied that he had been won over by the police and had deposed falsely. PW8 Jagdish is the complainant. He has reiterated his stand as taken by him before the police as per the written complaint (Ex.PD). It is inter alia stated by him that on 22.4.1999, Rampal (appellant) poured kerosene oil on their sister (Santosh) while she lay asleep and set her on fire. Poonam aged 8 years, her younger sister who was called Sonu aged 6 yrears and her brother Mohit aged 3-1/2 years also caught fire. Santosh and the Crl.Appeal No. 178-DB of 2005 6 children were taken to PGIMS, Rohtak from Village Soldha. When they reached PGIMS, Rohtak, they found that Santosh had already succumbed to her burn injuries. The children were in critical condition at that time and they expired after 26.4.1999. He made a written complaint (Ex.PD) to the police about this on 26.4.1999, which was in his hand writing. PW9 Rohtash is the brother of Santosh (deceased). He has supported the version of the complainant Jagdish. PW10 Dr. C.S.Chhajed on 28.4.1999 had conducted postmortem examination on the dead body of Mohit and observed as under:- “Rigor mortis was present all over the body. Postmortem staining on the back. Mouth and eyes were semi open. Superficial to deep burns all over the dead body except on skull, face, left leg and part of the back (around 55 to 60%). Red line of demarcation was present between healthy and burnt area. Yellowish discharge was present at many places. Vesicles were present at places, singing of scalp hair were present. All other organs were healthy and congested including the brain membrance. Both the chambers of the heart were containing dark fluid blood.” The cause of death of the deceased in his opinion was extensive ante mortem burn injuries and their complications. On the same day, he (PW10) had conducted postmortem examination on the dead body of Poonam and observed as under:- “Postmortem staining over back, mouth and eyes were semi open. Superficial to deep burns all over the dead body except on scalp, part of the face, part of upper extremity (right), part of Crl.Appeal No. 178-DB of 2005 7 right leg and both the soles (around 65 to 70%). Red line of demarcation was present between healthy and burnt area. Yellowish discharge was present at many places. Vesicles were also present at places and singing of scalp hair was present. All other organs were healthy and congested.” Cause of death in his opinion was extensive ante mortem burn injuries and their complications. PW11 SI Hoshiar Singh on 24.4.1999 received VT message from Police Post PGIMS, Rohtak, regarding the death of Santosh due to burn injuries and on receipt of message, he went to PGIMS, Rohtak and prepared inquest report (Ex.PI). Again on 28.4.1999, after the deaths of Mohit and Poonam, SI Hoshiar Singh had prepared inquest reports. PW12 Dr.Ramphal Kalonia, Medical Officer, Community Health Centre, Meham on 24.4.1999 had medico legally examined Santosh and observed as under:- “Superficial to deep burns were present all over the body, except dorsum and sole skin was pealed off at places. Red line of demarcation was present. Scalp hair, eye brows, eye laces, axillary hair and pubic hair were singed. All the internal organs were healthy.” Cause of death in his opinion was extensive burns and their complications, which were ante mortem in nature and sufficient to cause death in ordinary course of nature. PW13 ASI Azad Singh on 28.4.1999 received VT message regarding the death of Nitu in PGIMS, Rohtak due to burn injuries. After visiting the hospital, he collected the relevant papers and got conducted the Crl.Appeal No. 178-DB of 2005 8 postmortem examination on the dead body of Nitu on 29.4.1999. PW14 Constable Daya Chand tendered in evidence his affidavit (Ex.PP), which was to the effect that MHC Malkhana Jagdish Chand on 3.6.1999 handed over to him an empty plastic can of kerosene oil. The same was deposited by him in the FSL, Madhuban on the same day. PW15 Dr.Harsh Piplani stated that on 23.4.1999, he had medico legally examined Santosh, Poonam, Mohit and Nitu. 99% burn injuries were noticed on the person of Santosh, 65% burn injuries were noticed on the person of Poonam, 40% burn injuries were noticed on the person of Mohit and 35-40% burn injuries were noticed on the person of Nitu. Smell of kerosene was found on the person of all injured. PW16 Inspector Siri Chand stated that on 26.4.1999, a written complaint (Ex.PD) was presented by the complainant and he recorded FIR (Ex.PD/1). He also made his endorsement (Ex.PD/2). He then reached at the spot and prepared site plan (Ex.PU) with correct marginal notes. A photographer was arranged and photographs of the scene of crime were got clicked. On 27.4.1999, the appellant was arrested. On interrogation, he suffered a disclosure statement and in pursuance of his disclosure statement, he got recovered a plastic can from the specified place. Statements of witnesses were recorded by him, besides, he prepared report under Section 173 Cr.P.C. PW17 Dr.V.K.Govila, SMO, CHC Sampla stated that on 29.7.1999, he had conducted postmortem examination on the dead body of Nitu and observed as under:- “Rigor mortis was present in all the four limbs. Postmortem staining was present. There were burns over neck, right ear, Crl.Appeal No. 178-DB of 2005 9 right occipital region, front of chest and back, right upper limb and patchy left upper limb and left thigh, making approximately 40% burns. The skin was peeled off at most of the places. There were sloughing of tissues with frank pus of greenish yellow colour at places. Skull hair was singed and burnt in occipital region. Red line of demarcation was present. Internal organs were congested. Right side chamber of the heart contained blood, left empty.” Cause of death in his opinion was shock as a result of burns and their complications described, which were ante mortem and sufficient to cause death in ordinary course of nature. The FSL report (Ex.PX) was tendered in evidence. After close of the prosecution evidence, statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure (Cr.P.C.-for short). He denied all the prosecution allegations and pleaded to be innocent. The defence version of the appellant was that he had been falsely implicated in the case. He was not present at the spot at the time of occurrence. In fact, dry fodder was lying in the room, where Santosh and the children were sleeping. They caught fire accidentally from a burning kerosene earthen lamp. Jagdish, complainant, had borrowed a sum of Rs.1,50,000/- from him and when payment was demanded, then the present case was got registered against him. Opportunity was given to lead defence, but no defence was led. After hearing learned PP for the State, learned counsel for the appellant and from the perusal of evidence on the file, the appellant was convicted and sentenced as stated aforesaid. Crl.Appeal No. 178-DB of 2005 10 We have heard learned counsel for the appellant, learned State counsel and have gone through the evidence on the file. Learned counsel for the appellant contended that Mohit, aged about 3 years, Nitu, aged about 4 years, and Poonam, aged about 8 years were the son and daughters of the appellant and he had no dispute with them or with Santosh. On the day of occurrence, the appellant was not present at the spot. Santosh along with her children was sleeping inside the room where dry fodder was lying. With the fall of an earthen lamp, the dry fodder caught fire. Santosh and other deceased received burn injuries accidentally when the earthen lamp fell. They were taken to the hospital by the appellant. After the death of Santosh on 24.4.1999, the Investigating Officer on receipt of VT message from the hospital went there. Inquest report of the dead body of Santosh (Ex.PI) was prepared, which shows that the deceased caught fire accidentally. The Investigating Officer while appearing as PW11, admitted that while preparing the inquest report (Ex.PI), he had recorded that the deceased received injuries accidentally. All the deceased were medico legally examined. At the time of examination, a note was given by the doctor that the burn injuries were received when an earthen lamp fell and the dry fodder caught fire at about 3.00 a.m. on 23.11.1999 while the deceased were sleeping. Poonam and Santosh were conscious and oriented but no effort was made to record the dying declarations of Poonam or Santosh. Death of Poonam had occurred on 27.4.1999. She was 8 years' old. The incident had occurred on the intervening night of 22/23.4.1999. While preparing inquest report of the dead body of Santosh on 24.4.1999, the Investigating Officer should have made an effort to contact the Ilaqa Magistrate to record the dying Crl.Appeal No. 178-DB of 2005 11 declaration of Poonam but no effort was made in this regard by the IO or the doctor. The complainant party came to know about the incident on 23.4.1999 but no report was made to the police. After the death of Santosh on 23.4.1999, a written complaint (Ex.PD) was submitted on 26.4.1999. In fact, Jagdish, complainant, had borrowed Rs.1,50,000/- from the appellant. The appellant was demanding payment of the said amount but the complainant was not returning the payment. When the deceased caught fire accidentally and there was no member in the family except the appellant, then the written complaint (Ex.PD) was filed so as to implicate the appellant. There is no direct evidence. Case is based on circumstantial evidence. Learned State counsel contended that unnatural deaths at the house of the appellant had occurred on the intervening night of 22/23.4.1999. The contention of the appellant is that he was not present at the spot but copies of MLRs show that all the deceased were taken to the hospital by the appellant. This means that the appellant was present in his house at the time of the occurrence but no effort was made by him to save the deceased. While preparing inquest report (Ex.PI) of the dead body of Santosh, the IO wrote that Santosh and her children received burn injuries accidentally but the IO was not an eye witness. The IO wrote this while preparing inquest report (Ex.PI) as per the information supplied to him by Randhir Singh and Prem Singh but they were in fact not present at the time of occurrence. Since they were not present at the time of occurrence, then they were not in a position to report to the IO in this regard while preparing the inquest report that Santosh and her children received burn injuries accidentally. If dry fodder stored inside the room caught fire with the fall of Crl.Appeal No. 178-DB of 2005 12 an earthen lamp, then there was no question of smell of kerosene emanating from the person of the deceased. There was a motive to commit the crime because the appellant used to misbehave and maltreat Santosh. After the death of her elder brother, Santosh was not allowed to go and attend the religious functions at her parent's house. Earlier to that in the year 1985, the appellant had attempted to eliminate Santosh. When Jagdish, complainant, and his brothers came to the house of the appellant, then the appellant was found lying on a cot. One can of kerosene was also found lying under the cot. In pursuance of the disclosure statement suffered by the appellant, he got recovered a can from the specified place. The incident had occurred in the house of the appellant and there were four unnatural deaths. The only question which requires consideration is whether the deceased were set on fire by the appellant or the deceased caught fire accidentally on account of fall of an earthen lamp on the dry fodder in which they were sleeping. We have given our thoughtful consideration to the contentions of the learned counsel for the parties and gone through the evidence and material on record. Admittedly, there is no eye witness. Case is based on circumstantial evidence. When a case is based on circumstantial evidence, then motive assumes importance. The appellant was married with Santosh in the year 1977 and at that time, the appellant was serving in the Army. After retirement, the appellant started residing in Village Soldha. He is an addict. In the year 1985, he made an attempt to eliminate Santosh by setting her on fire. On receipt of information, the complainant along with his brothers had gone to the house of the appellant. The appellant was found lying on a cot in the courtyard, whereas Santosh was inside the room and the room was found locked from inside. A can of 5 lts. kerosene was found lying under Crl.Appeal No. 178-DB of 2005 13 the cot. After scaling over the wall, Jagdish, complainant, and his brothers had gone inside the house. On the request of the complainant side, the door of the room was got opened. The complainant side slapped the appellant. Santosh was brought by the complainant side to their house, where she stayed for about one year. Later on, panchayats of Villages Soldha and Basai had gathered and with the intervention of the respectables, Santosh was sent to her in-laws house. No question was put to the complainant and his brother Rohtash that in the year 1985, Santosh had not stayed with them in Village Basai for about one year and there was no panchayat. In the month of February, 1999, there was a marriage of the nephew and niece of Jagdish, complainant. According to the complainant, Santosh was not allowed by the appellant to attend that marriage but Risalo, the elder sister of the appellant came and had sent Santosh with her son Ranbir to attend that marriage. Again no question was put to the complainant and his brother that Risalo had not sent her son Ranbir with Santosh to visit Village Basai to attend the marriage of her nephew and niece. Risalo could easily be produced in defence to state that she had not sent her son Ranbir with Santosh to attend the marriage. The appellant could easily produce his sister or Ranbir in his defence to state that there was no dispute amongst the appellant and Santosh to attend the marriage of her (Santosh) nephew and niece. The other allegation of the complainant was that in the year 1999, Hari Ram, elder brother of the complainant, had expired and on 23rd of every month, relatives were to assemble continuously for six months. Santosh was requesting the appellant to attend these functions but the appellant did not allow her to attend them. No suggestion was put to Crl.Appeal No. 178-DB of 2005 14 Jagdish, complainant, and Rohtash that their brother Hari Ram had not expired on 23.2.1999 and on 23rd of each coming month, continuously for six months relatives were not to assemble. All this shows that before the present occurrence, Santosh was not having cordial relations with the appellant. The appellant, therefore, had a motive to commit the crime. Motive is always in the heart of the accused. Sometimes even without motive, heinous crimes are committed. As per defence version, Jagdish, complainant, had borrowed Rs.1,50,000/- from the appellant. The appellant was demanding payment of the same but the complainant was not agreeing to return the same. So, the complainant had a motive to implicate the appellant. However, this fact is not correct because a suggestion was given to the complainant that in the year 1982, he had borrowed Rs.1,50,000/- from his sister Santosh and payment was demanded in the year 1985. If Jagdish had borrowed Rs.1,50,000/- in the year 1982 and was not returning the payment, then the appellant should have filed a suit for recovery. At least a notice