Crl.Appeal.No.1659-SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal.No.1659-SB of 2003 Date of Decision: 27.3.2009 Rekha and another .....Appellants Vs. State of Punjab ....Respondent .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr.D.D. Sharma, Advocate for the appellants. Mr. C.S. Brar, DAG, Punjab. .... RAJIVE BHALLA, J The appellants lay challenge to the judgement and order dated 21.8.2003, passed by the Additional Sessions Judge, Ludhiana, convicting them of an offence punishable under Section 304 Part II of the Indian Penal Code and as a result, sentencing them to rigorous imprisonment for 7 years and imposing a fine of Rs.10,000/- each and in default of payment of fine further rigorous imprisonment of 3 months. FIR No.54 dated 21.5.1998, came to be lodged against the appellants under Section 304 IPC at Police Station Kotwali, Ludhiana, on the basis of following facts. On 21.5.1998, the complainant Sudesh Rani recorded a statement before S.I. Manjit Singh that she had taken a loan of Rs.40,000/- with interest from Rekha appellant no.1. She used to pay monthly interest. On 20.5.1998 at about 7.30 PM, Rekha came to her house to receive the Crl.Appeal.No.1659-SB of 2003 2 interest, but as she could not pay the entire amount, Rekha flew into a rage and kicked the stove, upon which the complainant was cooking food. The stove hit the complainant and she caught fire. Sudesh Rani's husband, who was sitting outside the door removed her to a hospital. In the hospital, Sudesh Rani recorded a statement before a Magistrate that Parshotam Lal had kicked the stove and Rekha threw the stove on her. During investigation, the police found Parshotam Lal innocent and presented a final report against Rekha. Upon appraisal of the final report, the Additional Sessions Judge, Ludhiana framed charges under Section 304 IPC against Rekha, appellant no.1. During the trial, Parshotam Lal, was summoned pursuant to an order passed under Section 319 of the Code and was arraigned and charged as an accused. The prosecution examined PW-1 Surinder Kumar, the alleged eye witness, PW-2 Vicky Kumar, PW-3 Raj Kumar, PW-4 Harminder Singh, PW-5 Satish Kumar, PW-6 Biru Khan, Constable, PW-7 Dr.U.S. Sooch, Medical Officer, PW-8 ASI Nachhattar Singh, PW-9 ASI Jagjit Singh, PW-10 ASI Nachhattar Singh, PW-11 SI Manjit Singh, PW-12 Sh.K.K. Bansal, JMIC, PW-13 Dr.Komal Malik, PW-14 Dr.Atul Chopra, PW-15 Dr.Raman Mittal and closed its evidence. The evidence adduced by the prosecution was put to the appellants under Section 313 of the Code of Criminal Procedure. The appellants denied the allegations in their entirety, pleaded their innocence but did not lead any evidence in defence. After appraisal of the evidence adduced by the prosecution and the arguments addressed, the learned trial court held the appellants guilty of commission of an offence under Section 304 Part-II of the IPC. In view of their conviction, the appellants were sentenced to rigorous imprisonment for Crl.Appeal.No.1659-SB of 2003 3 7 years, imposed a fine of Rs.10,000/- each and in default of payment of fine further rigorous imprisonment of 3 months. Counsel for the appellants submits that the trial court erred in convicting the appellants. The story as set up by the prosecution is inherently unbelievable, riddled with contradictions and is not supported by clear and cogent evidence. It is submitted that the deceased made two dying declarations. In the first dying declaration the deceased did not name Parshotam Lal-appellant no.2, whereas in her second dying declaration, she had named both the accused. It is argued that this inherent contradiction between her dying declarations remains unexplained and is, therefore, sufficient to cast a serious doubt upon the story set up by the prosecution. Another argument is that the deposition of PW-1 Surinder Kumar, husband of the deceased, who has been produced as an eye-witness, should be rejected as the deceased while recording her statement has clearly stated that her husband was sitting outside. The presence of the eye-witness PW-1 Surinder Kumar is, therefore, doubtful. It is also submitted that the presence of PW-2 Vicky, son of the deceased has not been established. It is further argued that when the deceased made her second statement before the then Judicial Magistrate, Ist Class, Ludhiana, the doctor did not record an opinion that she was mentally fit to make the statement. The dying declaration is, therefore, legally flawed and should have been rejected. It is further submitted that PW-7 Dr.U.S. Sooch, has deposed that the death was on account of septicaemia and embolism. As the death is not directly related to the burning, the appeal be allowed and the conviction and sentence imposed upon the appellants be set aside. On the other hand, counsel for the State of Punjab, submits that Crl.Appeal.No.1659-SB of 2003 4 the prosecution has successfully established the appellants guilt. The dying declarations, the depositions of eye witnesses and the medical evidence leave no doubt as to the appellants guilt. It is submitted that the alleged discrepancies and contradictions pointed out by counsel for the appellants are natural and have been dealt with and rejected by the trial court. The absence of Parshotam Lal's name in the first dying declaration is irrelevant. The deceased was in severe pain and though in a fit state of mind to make a statement may have left out important particulars, which she disclosed in her second statement made before the Judicial Magistrate, Ist Class, Ludhiana. It is further argued that the presence of the eye witnesses has been established and accepted by the courts below and is fortified by the fact that they removed the deceased to hospital. It is further submitted that septicaemia set in on account of the burn injuries and, therefore, the argument that the death was not caused by burn injuries is misplaced. I have heard learned counsel for the parties perused the record and the impugned judgement. The prosecution case is that on 20.5.1998 at about 7.30 PM, the appellants arrived at the house of Sudesh Rani for collection of interest on a loan advanced to her. The deceased was cooking food on a stove. The payment offered by the deceased was short by Rs.300/-. Rekha-appellant no.1 demanded the entire amount. Rekha, flew into a rage and kicked the stove, which landed on the deceased's body and she caught fire. Her husband extinguished the fire and admitted her to D.M.C. Hospital with 90% burns. Sudesh Rani recorded her statement before S.I., Manjit Singh on 21.5.1998, where she repeated the aforesaid facts but did not name Parshotam Lal. However, a second dying declaration was recorded by Crl.Appeal.No.1659-SB of 2003 5 Sh.K.K.Bansal, the then Judicial Magistrate, Ist Class, Ludhiana, in which Sudesh Rani disclosed the entire version and stated that Parshotam Lal kicked the stove and then Rekha accused picked up the stove and threw it on her. On the basis of this evidence, both the accused were arrested but after investigation, Parshotam Lal was declared innocent. Upon appraisal of the material in the final report, the trial court framed a charge under Section 304 Part-II of the Indian Penal Code. During the course of the trial, Parshotam Lal was summoned under Section 319 of the Code of Criminal Procedure and arraigned as an accused. After conclusion of the evidence, the trial court found the appellants guilty of offence punishable under Section 304, Part II of the Indian Penal Code. The argument that Parshotam Lal has been falsely implicated, as he is not named in the first dying declaration, merits rejection. The second dying declaration where Parshotam Lal has been named as the person who kicked the stove was made before the then Judicial Magistrate, Ist Class, Ludhiana. The initial dying declaration was recorded on 21.5.1998 before S.I. Manjit Singh immediately after the incident. The deceased was apparently in great shock and pain may have missed material particulars. In the second dying declaration recorded before the Judicial Magistrate, Ist Class, Ludhiana, she disclosed the role of the appellants. There appears to be no reason to doubt the correctness of the second version. The next submission that the second dying declaration should be rejected, as the doctor did not certify that the deceased was mentally fit to make a statement merits rejection. There is no allegation that the deceased was unable to understand the questions posed to her or that her responses were confused. The statement has been proved by examining the Magistrate. The appellants Crl.Appeal.No.1659-SB of 2003 6 cannot draw any benefit from this lapse on the part of the doctor particularly when the doctor, who recorded the opinion that the deceased is medically fit to record a statement was the same in both the statements. The next argument that PW-1 Surinder Kumar and PW-2 Vicky, the husband and son of the deceased were not present cannot be accepted. These witnesses have deposed as to the role of the appellants. Their depositions is in consonance with the dying declaration. It is not denied that they removed Sudesh Rani to the hospital. The learned trial court has considered their statements in their entirety and has upheld their credibility. The mere fact that Sudesh Rani has stated that her husband was sitting outside, is insufficient to disbelieve the statement of PW-1. I, therefore, find no reason to record an opinion different from the opinion recorded by the trial court. The last argument that the deceased died due to septicaemia and embolism and not on account of the burn injuries disregards the fact that septicaemia and embolism set in due to the burn injuries. The infection and the blocking of arteries was the direct result of the burn injuries sustained by the deceased. In view of what has been stated herein above, the arguments addressed by counsel for the appellants are rejected and the findings recorded by the trial court are affirmed. The conviction imposed upon the appellants is consequently upheld. Appellant no.1 has undergone more than five years of actual sentence. Appellant no.2 has undergone 1 year 7 months and 28 days of actual sentence. The appellants do not possess any previous criminal record. Appellant no.2, who was employed as a sweeper has lost his job and has paid for his error. The appellants belong to the lowest strata of society and Crl.Appeal.No.1659-SB of 2003 7 are now middle aged. They have faced prosecution for the last more than 10 years . It would be necessary to mention here that though the appellants are guilty of the commission of an offence under Section 304 Part II of the Indian Penal Code, the incident occurred at the spur of the moment. Taking into consideration the circumstances in their entirety while upholding their conviction, their sentence is reduced to the period already undergone. With the above modification in the order awarding sentence, the appeal stands disposed of accordingly. 27.3.2009 (RAJIVE BHALLA) GS JUDGE