IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA-D 522-DB of 2002 Date of decision: 12.10.2011 Dharamraj and others …..Appellants versus State of Haryana ……Respondent CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mrs.Justice Sabina Present: None for the appellants Mr.Pardeep Singh Poonia, Addl.A.G. Haryana Jasbir Singh, J. Vide judgment dated 22.5.2002, appellants, namely, Dharamraj son of Raghbir Singh (A1), Smt.Chandro wife of Raghbir Singh (A2) and Smt.Roshni wife of Dhanpat(A3) were convicted for commission of an offence under Section 302 read with Section 34 IPC. On 24.5.2002, they were sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- each for the above said offence with a default clause. It was allegation against the above named appellants that with common intention they had committed murder of Sudesh wife of Dharamraj and her three children namely, Ritesh, Manisha and Reena, by putting them on fire on 23.5.1998. On a statement (Ex.PA) made by PW1 Rajbir (brother of the deceased Sudesh), an FIR No.171 of 1998 was recorded against above named accused in police station Sadar Rohtak. As per admitted facts on record, during investigation, A2 and A3 were found innocent and in the CRA-D 522-DB of 2002 final report, their names were put in column No.2. However, thereafter, by invoking the provisions of Section 319 Cr.P.C., both were summoned to face trial. A2 is an old lady of more than 80 years of age and A3 is also aged about more than 40 years. A2 and A3 are the mother and sister respectively of A1. Process of law was set in motion on a statement made by Rajbir (PW1), which was recorded on 23.5.1998 at 4.30 PM. FIR (Ex.PJ) was registered at 5.10 PM on an intimation sent by ASI Sunil Kumar (PW9). The trial Court has noted the following facts with regard to the case of the prosecution:- “Rajbir, complainant is a resident of village Shadipur, Police Station Julana, district Jind. He is an agriculturist. He has one brother and had two sisters named Sudesh and Parmila. Sudesh had been married 15 years ago with Dharamraj accused. She gave birth to a son named Ritesh aged 10 years and two daughters named Reena aged 7 years and Manisha aged 5 years. Dharamraj was a drunkard. He had been beating Sudesh. On account of his behaviour towards her, his sister Sudesh had been staying at her parental home for several days at a stretch. She had been sent to her matrimonial home at village Sanghi by the complainant and others by persuading her to resume her marital duties. Sudesh had been telling the complainant and others of his family that her husband had already made a plant to kill her. About 20 days earlier to her death, Dharamraj had given beating to Sudesh. Sudesh came to village Shadipur with her children. As the schools of the children had opened, Sudesh was sent 2 CRA-D 522-DB of 2002 again with her children to village Sanghi on 18.5.1998. On that day, the complainant went with her to village Sanghi. His sister was greeted with taunts by Dharamraj, his mother Smt.Chandro and his sister Smt.Roshni. She was asked as to why she had come and she was told that whatever they had thought about her, they would do with her. The complainant advised his sister to stay at her matrimonial home. Still his sister had told him that she would be eliminated with her children, the moment the complainant went away. The complainant had returned to his village after leaving his sister and her children there. He told his parents about the condition of Sudesh there. On 22.5.1998, Sunhera, father of the complainant told the complainant to go to village Sanghi to know about the welfare of Sudesh. The complainant accompanied his uncle Om Parkash to Sanghi. They reached Sanghi at about 7.00 p.m. He found Smt.Chandro, Smt.Roshni and Dharamraj at the house. Sudesh was also there. Dharamraj alongwith Smt.Chandro and Smt.Roshni was quarrelling with Sudesh. The complainant and Om Parkash tried to prevail upon them. After taking meals in the night, the complainant and Om Parkash went to sleep in the court-yard of the house. Sudesh with her children and Dharamraj went to sleep in the room on the first floor called chobara. Smt.Chandro and Smt.Rohni went to sleep inside the house on the ground floor. At about 12.30 O’clock in the night, the complainant heard the cries of Sudesh and her children coming from the chobara. He awakened Om Parkash and 3 CRA-D 522-DB of 2002 using the stair case they reached the chobara. They found Sudesh in flames. She was running here and there. Within the view of the complainant, Dharamraj threw kerosene oil from a dusty coloured plastic can on the cot of Ritesh and the other cot of Manisha and Reena. Smt.Roshni, who held the match box in her hand lighted a match stick and set the cots of the children on fire. Smt.Chandro declared that none of them should be spared on that day. In the meanwhile, several persons from the village collected. They had put out the fire. Sudesh and the children were taken to PGIMS Rohtak by those villagers, where they were medico-legally examined by Dr.M.Farukh. The complainant and his uncle Om Parkash started for Shadipur to inform the people there of the incident. Therefrom they reached PGIMS Rohtak. By that time, Sudesh, Ritesh and Manisha had died and Reena was struggling for life.” Reena also died on 24.5.1998. It is on record that a V.T. message was received in police station Sadar Rohtak on 23.5.1998, stating arrival of Sudesh, Ritesh, Manisha and Reena at PGIMS Rohtak in a burnt condition. Sher Singh ASI reached there, obtained medical Ruqa and 4 MLRs of the above named persons. He then made an application to know about fitness of the injured to make statements. Sudesh was declared dead and the other were declared unfit to make statements. None was found in attendance over these persons in PGIMS Rohtak. ASI Sher Singh continued to stay in the hospital waiting for someone to come and inform, as to how the incident has occurred. Rajbir complainant met him in the hospital at about 3/3.30 pm, whose 4 CRA-D 522-DB of 2002 statement was recorded by ASI Sher Singh, on the basis of which, FIR was registered against the appellants, by ASI Sunil Kumar (PW9). ASI Sher Singh prepared inquest report on the dead bodies and sent them for post- mortem examination, which was conducted by Dr.R.K.Chaudhary (PW5) on 24.5.1998. Prior thereto, the injured were examined by Dr.M.Farukh (PW14). The investigation was taken over by SI Ramphal (PW16), who went to the spot, got the place of occurrence photographed. He also took into his possession burnt ash, peeled skin, a plastic can having about a litre of kerosene oil, a match box with one or two burnt match sticks lying with it. He also took into his possession pieces of semi burnt quilt, semi burnt pieces of niwar etc. He also recorded statements of the witnesses. After investigation, final report was put in Court against A1 Dharamraj, names of the other two appellants were put in column No.2, having been found innocent. A2 and A3 were summoned on application under Section 319 Cr.P.C. The appellants-accused were charge sheeted for commission of an offence under Section 302 read with section 34 IPC. Necessary documents were supplied to them. They pleaded not guilty and claimed trial. The prosecution produced as many as 16 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statements of the respondents were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, which they denied, claimed innocence and false implication. All the three said that it was a case of an accidental fire, they were not present in the house at the time of alleged occurrence. A1 stated that he came to his house, when informed of the incident by a neighbour. He took all the injured to PGIMS Rohtak for treatment. He further stated that he also sent a person, to inform about the incident, to A2, who was at village 5 CRA-D 522-DB of 2002 Sunaria. He also sent a message to the parents of the deceased Sudesh. To the same effect is the defence taken by A2 and A3. They also led evidence in defence. The trial Court on appraisal of evidence, found them guilty and accordingly they were convicted and sentenced as found mentioned in earlier part of this order. We have heard counsel for the State and perused the paper book. As per information supplied, A1 Dharamraj had died in Jail on 17.6.2003, A2 and A3 are on bail. In view of above, it is not necessary for us to look into involvement and culpability of A1 into the charges leveled against him. Qua him appeal abates. Now, it is to be seen as to whether A2 and A3 had participated at the time of alleged occurrence, in which, Sudesh and her children were put to fire. Case of the prosecution rests upon statements made by PW1 Rajbir (brother of the deceased Sudesh) and PW2 Om Parkash (uncle of the deceased Sudesh). It is case of the prosecution that they had seen the occurrence, in which Sudesh and her children were put to fire by A1. A2 and A3 were also present at the spot and gave an exhortation that no one be allowed to survive. In his statement, Rajbir (PW1) had stated that marriage between A1 and Sudesh took place more than 15 years ago. Three children took birth out of the wedlock, who were of the age of 10, 7 and 5 years respectively. He has further stated that A1 Dharamraj was a drunkard. He used to give beatings to his sister on account of which, she, along with the children used to live in her parental house for days together. It was further stated that 20 days earlier to the date of incident, Dharamraj gave beatings 6 CRA-D 522-DB of 2002 to his sister. She came to her parental house and then persuaded to go back to village Sanghi, where she was put to fire on 23.5.1998. It is further case of the prosecution that on 22.5.1998, PW1 Rajbir, PW2 Om Parkash went to the house of the deceased, in the midnight, they heard cries of Sudesh, they went upstairs and saw that she had been putting to fire by A1. In their sight, kerosene oil was sprinkled on the children and they were put to fire by A2. It is further stated that in the meantime, many people were attracted to the spot, fire was extinguished and then the injured were taken to the PGIMS Rohtak for treatment. However, very surprisingly, Rajbir (PW1) and Om Parkash (PW2), who were very closely related to the injured, did not go to Rohtak to get medical treatment for the injured, rather they preferred to go to their village Shadipur and then reached the hospital alongwith others at about 3.30 during the day. This Court feels that their conduct is most unreasonable. Both have stated that they were not under fear. They went to village Shadipur just to inform the parents of the deceased. This could have been done by one out of the two. As per facts, injured were got admitted in the hospital by Dharamraj (A1). Sher Singh ASI has categorically stated that when he reached the hospital, none was in attendance to the injured. He continued to wait for someone to come and state as to how they have caught fire. He met PW1 Rajbir only at 3/3.30 PM. Above fact makes the presence of PW1 and PW2 at the spot very doubtful. Defence witnesses have also stated that both were not present at the spot. At the same time, this Court is not ready to accept the defence version that none of the three appellants-accused was present at the house when alleged occurrence had taken place. A1 had stated that he was irrigating his fields at his tubewell when accidental fire had taken place in 7 CRA-D 522-DB of 2002 his house. He came to the spot when informed by a neighbour. There is nothing on record to show that A1 owns any tubewell. Otherwise also, it was a month of May and the wheat crop might be ready for harvesting and there was no question of irrigating the fields at that time. As per evidence on record, A1 used to take excessive liquor. It appears that on account of some altercation with his wife, it was he, who has committed the crime. At the time of alleged occurrence, age of A2 was more than 70 years. Marriage between A1 and Sudesh had taken place 15 years ago. Three children born out of the wedlock. A2 may have some grudge so far as her daughter–in-law is concerned, however, with the small children she was not supposed to have any animosity, rather as per our traditions, being a grandmother, she was supposed to look after them well. It is not expected that she will put the small children to fire, as alleged by the prosecution. A neighbour has appeared in the witness box to state that she was away to her parental house at the time of occurrence. This fact was also authenticated during investigation by SI Ramphal (PW16), who found both A2 and A3 innocent and their names were accordingly put in column No.2 of the final report. In his cross-examination, this witness has stated as under:- “It had come in my investigation that Roshni and Chandro were not there at the house where the occurrence took place in the night of occurrence. I found Roshni to have been there at her matrimonial home and Chandro to have been there to her parental home. It is incorrect to say that the occurrence had taken place by way of accident and that it had come in my investigation that Dharamraj had been away to tubewell to irrigate his land at the time of occurrence.” 8 CRA-D 522-DB of 2002 A3 is married and she is expected to live in her matrimonial house. Otherwise also, at the time of alleged occurrence, no overt act except exhortation has been attributed to her. In view of above, the prosecution has failed to bring home guilt of the appellants-accused, namely, Smt.Chandro (A2) and Smt.Roshni (A3). Dharamraj (A1) is dead. Qua him appeal abates. Qua Smt.Chandro (A2) and Smt.Roshni (A3), this appeal is allowed, their conviction and sentence is set aside. (Jasbir Singh) Judge 12.10.2011 (Sabina) gk Judge 9