Criminal Appeal No. 608-DBA of 1995 - 1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 608 -DBA of 1995 DATE OF DECISION: April 05, 2010 State of Haryana .....APPELLANT VERSUS Ram Niwas .....RESPONDENT CORAM: HON'BLE MR JUSTICE T.P.S.MANN PRESENT: Ms Hem Lata Balhara, Assistant Advocate General, Haryana for the appellant. Mr Ramesh Hooda, Advocate for the respondent. T.P.S. MANN, J. (Oral): The respondent was tried for offences under Sections 306, 498-A, 109 IPC, but, vide judgment dated 28.2.1995 passed by learned Additional Sessions Judge (II), Bhiwani, he stands acquitted. The State of Haryana is now before this Court by way of an appeal with a prayer that the acquittal of the respondent be set aside and he be convicted and sentenced in accordance with law. According to the prosecution, Smt Mayapati, since deceased, was married to the respondent about 5 years earlier to the occurrence. From their marriage, one female child was born about 2½ years earlier to the occurrence. Since the beginning of the marriage, the respondent used to Criminal Appeal No. 608-DBA of 1995 - 2- be cruel towards his wife. He had been beating her and maintaining relations with scheduled caste ladies. He had been quarrelling for the last four days. He used to tell her to consume some poisonous substance, as she was in the habit of eating all the time and not doing any work. On the day of occurrence also, she was beaten by the respondent in the morning. During the day, she poured kerosene upon her body whereas the respondent set her on fire with the help of a match stick. Her jeth and jethani were also present there, who poured water upon her, changed her clothes and then removed her to the hospital. However, the respondent brought her back. She was again taken to the hospital by her jeth and jethani. There was no dispute between the deceased and her husband over dowry, but he used to quarrel with her. Smt. Mayapati was examined by the doctor on 21.2.1993. The doctor sent ruqa Ex.PE to Incharge, Police Post, General Hospital, Bhiwani to make arrangement for C.J.M to reach and record the statement of the victim. Accordingly, the police sought assistance of Shri Vinod Jain, the then Additional Chief Judicial Magistrate, Bhiwani, who went to the hospital and after obtaining opinion from the doctor about the fitness of Smt. Mayapati to make a statement, recorded her statement Ex.PJ, on the basis of which FIR Ex.PJ/5 was recorded against the respondent for offences under Sections 309, 201, 498-A, 109 IPC. On 23.2.1993, Smt. Mayapati expired. Ruqa Ex.PH was then sent by Dr Narender Kumar and accordingly, offence under Section 309 IPC was deleted and instead, offence under Section 306 IPC was added by the police in the heading of the FIR. During investigation of the case, the police prepared rough site plan and took into possession kerosene bottle. Criminal Appeal No. 608-DBA of 1995 - 3- The statements of the witnesses were recorded and on completion of the investigation, challan was presented in the Court of Illaqa Magistrate, who committed the case further to the Court of Sessions. It was followed by framing of charges against the respondent for the offences under Sections 306, 498-A, 109 IPC, to which he pleaded not guilty and claimed trial. In support of its case, the prosecution had examined PW-1 Dr H.Mehta, PW-2 Dr J.B.Gupta, PW-3 Dr Narender Kumar, PW-4 Ram Chander, brother of the deceased, PW-5 Sadhu Ram, Record Keeper, General Hospital, Bhiwani, PW-6 Shri Vinod Jain, Sr. Sub Judge, Narnaul, PW-7 Ram Avtar, PW-8 Kanwar Pal, Draftsman and PW-9 ASI Hari Charan, Investigating Officer. When examined under Section 313 Cr.P.C, the respondent had denied the allegations of the prosecution and pleaded false implication. According to him, his wife caught fire accidentally, and later on, at the instance of Ram Chander, brother of Smt. Mayapati, he was involved in the present case. After hearing learned counsel for the parties and going through the evidence, the learned trial Court acquitted the accused-respondent of the charges against him. The reasons for acquitting the accused-respondent have been mentioned by the trial Court in para-9 of its judgment. The said para reads as follows: “The allegations against the accused are that he subjected Smt. Mayapati to cruelty and also abetted her to commit suicide. As regards meeting out of cruelty to her no evidence worth the name has been brought on the record by the prosecution. The only statement available is of Ram Chander PW4 and dying declaration Ex.PJ itself. A perusal of the statement of Ram Chander PW4 brother of Smt. Mayapati deceased shows that he deposed about a Criminal Appeal No. 608-DBA of 1995 - 4- quarrel which took place for the last 4/5 days between them but the same is not sufficient to hold that Ram Niwas had been harassing her as no other witness had been examined to prove any cruelty committed by Ram Niwas to her. None of her parents appeared. As far as the dying declaration of Smt. Mayapati is concerned, on its thorough perusal in view of Ram Chander's statement, no case of abetment committed on behalf of the accused is made out since Ram Chander PW4 has deposed that after the occurrence her sister had told that Ram Niwas sprinkled kerosene oil on her and thereafter, lit her with the match box which was not her case in her dying declaration wherein she has stated that “Mere pass Aadhe litre ki miti ke tail ki bottle pari thi, mene apne uppar udhel lee, mere aadmi Ram Niwas nai matchiss dei dee, pass mai mere jeth-jithani thai, Bhage aaye, panni dala, mere kapre badle”. Thus both these contradictory version makes the prosecution version highly doubtful about setting Mayapati deceased on fire by litting a match-box by Ram Niwas. Further more, the best witnesses to the occurrence were deceased's jeth and jethani who according to her were eye witnesses but were not examined by the prosecution so in these circumstances, no case of abetment against the accused in commitment of the suicide by Smt. Mayapati is made out. The same view has been taken in Raj Kumar's case (supra). Moreover, initially the case was registered under Section 309 IPC i.e. attempt to commit suicide but later on changed to Section 306 IPC without any justification. So keeping in view all the facts and circumstances of the case, no evidence worth the name has been brought on the record to connect the accused whether he provoked, incite or encouraged her (Smt. Mayapati) to commit suicide. So for the reasons given above, the prosecution has failed to bring home the guilt against the accused Criminal Appeal No. 608-DBA of 1995 - 5- under sections 306/498A/109 IPC and giving benefit of doubt, he is acquitted of the charge. His bail bonds are discharged”. In the statement Ex.PJ made by Smt. Mayapati before PW-6 Shri Vinod Jain, the then Additional Chief Judicial Magistrate, Bhiwani, which after her death assumed the nature of a dying declaration, it was clearly stated by her that ever since she had started living with the respondent, the latter used to quarrel with her. He had been beating her and keeping illicit relations with scheduled caste ladies. Even during the period of four days before the occurrence, he had been quarrelling with her and telling her that she should consume some poisonous substance and die as she had been eating all the times and not working. According to the victim, the respondent had been going to scheduled caste ladies every third day. Even on 21.2.1993, he started beating her. She was carrying a bottle containing half litre of kerosene which she poured upon herself. At that time, the respondent was present there who set her on fire with the help of a match stick. Her jeth and jethani, who were also present nearby, rushed and poured water on her and changed her clothes. She was removed to the hospital but brought back by the respondent without entering the hospital building. Thereafter, she was removed to the hospital by her jeth and jethani and got admitted. Aforementioned statement Ex.PJ was recorded by Shri Vinod Jain on 22.2.1993 at 8.50 AM after reaching General Hospital, Bhiwani. PW-2 Dr. J.B. Gupta made an endorsement thereupon that the statement had been recorded in his presence and the patient remained fully conscious throughout. The statement Ex.PJ was handed over by Shri Vinod Jain to ASI Hari Charan on 22.2.1993 at 5.15 PM when the latter went to Bhiwani Criminal Appeal No. 608-DBA of 1995 - 6- Courts. Consequently, FIR Ex.PJ/5 was recorded at Police Station Sadar, Bhiwani on 22.2.1993 at about 5.30 PM. While appearing as PW-6 Shri Vinod Jain deposed that on 22.2.1993, when he was posted as Additional Chief Judicial Magistrate, Bhiwani, he recorded statement Ex.PJ of Mayapati without any addition or omission. Before recording the statement, opinion Ex.PE/1 was obtained from the doctor that she was fit to make statement. Once the statement was completed, it was read-over to Mayapati. Throughout the time of recording statement of Mayapati, Dr J.B.Gupta remained present. Ram Chander, brother of the deceased, was examined by the prosecution as PW-4. He deposed that one Bakhtawar had come came and informed him that Smt.Mayapati had been burnt and was lying admitted in General Hospital, Bhiwani. Thereafter, he, alongwith his father, went to Loharu and then to Bhiwani. After that they reached village Bamla where they found Smt. Mayapati burnt in the house and she was crying. They removed her in a three-wheeler to General Hospital, Bhiwani, for treatment. On an enquiry made by him, his sister stated that for the last 4/6 days, her husband was torturing and causing harassment to her. She also told that on the day of occurrence, Ram Niwas had sprinkled kerosene on her and thereafter, lit her on fire with the match stick. She also stated that her husband was having illicit relations with various scheduled caste ladies. However, she felt ashamed in telling about the misdeeds of her husband. Even during her visit to his village, she had been narrating her story. During his cross-examination, he was confronted with the statement Ex.DA made by him before the police under Section 161 Cr.P.C wherein it was not stated that when he reached the house of his sister, he found her crying Criminal Appeal No. 608-DBA of 1995 - 7- while in a burnt condition, his sister telling her that for the last about 4/5 days, her husband had been torturing and causing harassment to her and Smt Mayapati telling him that on the day of occurrence, the accused had sprinkled kerosene upon her and thereafter, lit her with the help of match stick. It was also not stated by him in his statement Ex.DA that his sister had told him that her husband was having illicit relations with various scheduled caste ladies The relevant portion of the evidence in the shape of statement of PW-4 Ram Chander, having not been stated earlier before the police and his stating so in the Court for the first time, cannot be accepted. Still, the dying declaration Ex.PJ made by Smt. Mayapati remains. She had explained therein the reasons as to why she was being tortured and harassed by her husband and creation of circumstances by her husband which left her with no other option but to end her life. She had stated therein that her husband had illicit relations with the scheduled caste ladies. He had been beating his wife and also telling her to consume some poisonous substance and end her life, as she was not doing any work and eating all the time. Even in the morning of the day of the incident i.e. 21.2.1993, the respondent had quarrelled with Smt. Mayapati. At the time of the occurrence, the deceased was carrying a bottle containing half a litre of kerosene and she poured the same upon her body. Her husband was carrying a match stick with him, which he used to set her on fire. Even thereafter, the respondent did not feel any remorse as after attempting to remove his wife in an injured condition to the hospital and getting her treated, brought her back without entering the hospital building. Thereafter, only the jeth and jethani of Smt. Mayapati shifted her to the hospital. Criminal Appeal No. 608-DBA of 1995 - 8- Both Ramesh Kumar and Smt. Rajo, the jeth and jethani of Smt. Mayapati had been cited as prosecution witnesses. However, both of them were won-over by the accused and therefore, given up by the prosecution and not examined as such. This fact is apparent from the statements made by the Public Prosecutor on 24.1.1994 and 5.3.1994. Therefore, the prosecution cannot be blamed if it could not examine both Ramesh Kumar and Smt. Rajo, though they were present at the time of the occurrence. The statement Ex.PJ made by Smt. Mayapati had disclosed commission of offences under Sections 309, 201, 498-A, 109 IPC. Consequent upon the death of Smt. Mayapati, offence under Section 309 IPC had to be deleted from the heading of the FIR and as there were allegations of abetment to commit suicide levelled against the respondent, offence under Section 306 IPC was added in its place. After examining the contents of the dying declaration Ex.PJ, this Court is of the view that the same could not have been ruled out of consideration so as to acquit the respondent of the charges under Section 306, 498-A, 109 IPC. The view taken by the learned trial Court that there was no evidence worth the name on the record to connect the respondent of provoking, inciting or encouraging Smt. Mayapati to commit suicide, cannot be sustained. Resultantly, the appeal is accepted, the impugned judgment of acquittal is set aside and the respondent is held guilty for offences under Sections 306, 498-A, 109 IPC. He is sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/-for the offence under Section 306 IPC and in default of payment of fine, to undergo further rigorous imprisonment for six months. He is also sentenced to undergo Criminal Appeal No. 608-DBA of 1995 - 9- rigorous imprisonment for one year and to pay a fine of Rs.2,000/- under Section 498-A IPC and in default of payment of fine, to undergo further rigorous imprisonment for three months. Similarly, he is sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/- under Section 109 IPC and in default of payment of fine, to undergo further rigorous imprisonment for six months. All the substantive sentences of imprisonment are ordered to run concurrently. April 05, 2010 (T.P.S.MANN) Pds JUDGE