IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ...... Criminal Appeal No.688-DB of 2005 …… Date of decision:21.10.2008 Mewa Devi and Others ..... Appellants Versus State of Haryana ..... Respondent …… CORAM: HON'BLE MR. JUSTICE S.S. SARON HON'BLE MRS. JUSTICE SABINA Present: Mr. Baldev Singh, Senior Advocate with Mr. Deepinder Singh Advocate and Mr. Arshvinder Singh, Advocate for the appellants. Mr. H.S. Sran, Additional Advocate General, Haryana for the Respondent-State. *** S.S. SARON, J. This appeal has been filed by the appellant Mewa Devi (appellant No.1), Dev Dutt (appellant No.2), Vinod (appellant No.3) and Gajraj (appellant No.4) against the judgment and order dated 25/31.8.2005 passed by the learned Sessions Judge, Narnaul. In terms of the order dated 25.08.2005, Mewa Devi (appellant No.1) has been held guilty and convicted for the offence under Section 302 of Indian Penal Code (“IPC” – for short); besides, all the appellants have been held guilty and convicted for the offence under Section 304-B IPC. However, the offence under Section 120-B read with Section 302 IPC against the appellants No.2 to 4 has been held to be not proved and the said appellants have been acquitted of the offence under Section 120-B read with Section 302 IPC. Mewa Devi (appellant-1) has been sentenced to imprisonment for life; besides, to pay a fine of Rs 5,000/- and in default thereof, to undergo further RI for 6 months, for the offence under Section 302 IPC. She has also been sentenced to RI for 10 years for the offence under Section 304B IPC. Both the sentences have been ordered to Criminal Appeal No.688-DB of 2005 -2- run concurrently. Dev Dutt (appellant-2) has been sentenced to undergo RI for 10 years for the offence under Section 304B IPC. Vinod (appellant-3) and Gajraj (appellant-4) have been sentenced to undergo RI for 7 years for the offence under Section 304B IPC. The appellants assail the order of their conviction and sentence as passed by the learned trial Court. The FIR (Ex. PN) in the case has been registered on the basis of the statement (Ex.PT) made by Smt. Sunita (deceased) wife of Dev Dutt (appellant No.2) before Sh. B. Diwakar, learned Additional Chief Judicial Magistrate, (ACJM – for short) Narnaul (PW-12). Sh. B Diwakar, ACJM (PW-12) recorded the statement (Ex.PT) under Section 164 of the Code of Criminal Procedure (“CrPC” – for short) in the nature of dying declaration of Smt. Sunita (deceased) on 30.4.2004. It was stated by Smt. Sunita (deceased) on solemn affirmation that at night Vinod (appellant No.3), Gajraj (appellant No.4), her husband (Dev Dutt - appellant No.2) and her mother-in- law (Mewa Devi - appellant No.1) quarreled with her. After she was given a beating, her husband Dev Dutt (appellant No.2) proceeded on duty. Her husband Dev Dutt (appellant No.2) used to say that he would obtain a divorce. Her brother-in-law (husband’s younger brother) had also beaten her. On 30.04.2004 i.e. the date of occurrence, the mother-in-law Mewa Devi (appellant No.1) of the complainant-Smt. Sunita poured kerosene oil on her and her son namely Ankit. At that time, the complainant and her son were sleeping and kerosene oil was poured on them and they were set on fire. When the complainant - Smt. Sunita woke up, she saw her mother- in-law (Mewa Devi - appellant No.1) going out through the door and she cried. Many people had gathered there but she did not know who they were. Thereafter, she became unconscious. The complainant then stated that her parents be called. At the said stage, Sh. B. Diwakar, ACJM, Narnaul (PW-12) recorded that the patient (Smt. Sunita) stopped responding to the questions put by him. The learned Additional Chief Judicial Magistrate (PW-12) then recorded; “RO & AC” meaning thereby read over and affirmed correct. It is, thereafter, recorded a note (Ex PT/2) that both of the Criminal Appeal No.688-DB of 2005 -3- hands of the patient were completely burnt, therefore, her signature and thumb impression could not be obtained. Thereafter, note (Ex.PT/1) was recorded which is a certificate by Sh. B. Diwakar, learned ACJM, Narnaul (PW-12) to the effect that he had made it clear to Smt. Sunita (deceased) that she was not bound to make a statement and if she chose to make a statement then that may be used as evidence as against her during trial. The statement was recorded by him personally and her signatures or thumb impression could not be obtained as both her hands were badly burnt and she also stopped responding to his questions while she was making her statement. It is recorded that the statement contains the true description of the facts stated by her. The Police proceedings were recorded to the effect that on 30.04.2004 a medical memo (ruqa) was received at the Police Station to the effect that Smt. Sunita (deceased) wife of Dev Dutt was admitted in a burnt condition at Government Hospital, Narnaul. Besides, Ankit son of Dev Dutt had been brought dead to the General Hospital, Narnaul. The doctor had advised for recording the dying declaration of Smt. Sunita. Thereupon, ASI Sher Singh (PW-16) along with Constable Rohtas Kumar and Constable Anil Kumar were sent to the hospital. ASI Sher Singh (PW-16) submitted an application to the Additional Chief Judicial Magistrate, Narnaul (PW-12) for recording the statement (Ex PT) of Smt. Sunita. On this, the Additional Chief Judicial Magistrate, Narnaul (PW-12) reached the Government Hospital, Narnaul and recorded the statement of Smt. Sunita (deceased). An application was submitted for taking a copy of the statement (Ex.PT) of Smt. Sunita. Smt. Sunita died thereafter. Copy of the statement (Ex.PT) made by Smt. Sunita was also received and the case for having committed offence under Section 302/120-B IPC was found to be made out. Accordingly, FIR (Ex.PN) was registered in this regard. In the present case, death of Smt. Sunita wife of appellant-2 (Dev Dutt) and Ankit minor son of appellant-2 (Dev Dutt) has occurred. The investigation in the case was conducted by SI Jaipal Singh (PW-17). He along with ASI Sher Singh Criminal Appeal No.688-DB of 2005 -4- (PW-16) and other Police officials had obtained a copy (Ex PM) of the statement (Ex.PT) of Smt. Sunita (deceased) recorded by the learned Additional Chief Judicial Magistrate, Narnaul (PW-12) under Section 164 CrPC on which he made his endorsement Ex.PM/1 and sent the same through Constable Chhailu Ram (PW-11) to the Police Station for registration of the case. SI Jaipal Singh (PW-17) then conducted inquest proceedings under Section 174 CrPC of Smt. Sunita and her son Ankit which are Ex.PC and Ex.PE respectively. The statements of Subhash Chand (PW-13) and Arjun Singh (PW-14) were recorded in terms of Section 161 CrPC on 1.5.2004. A rough site plan (Ex.PY) of the place of occurrence with marginal notes was prepared. The photographs (Exs.P1 to P8) of the place of occurrence were got taken and their negatives were Exs.P9 to P16. The burnt mattress (Ex.P24), burnt clothes (lehnga) (Ex.P19), plastic can (Ex.P18), one match box (Ex.P17) were taken in possession. Besides, odhni (Ex.P20), blouse (Ex.P21), brassiere (Ex.P22 ), baniyan (vest) (Ex.P23) were also taken in possession and put in separate parcels which were duly sealed. The memo of recovery was signed by Constable Chhailu Ram (PW-11) and Constable Subhash. The statements of Constable Chhailu Ram (PW-11) and Constable Subhash were recorded on 1.5.2004. Thereafter, applications Ex.PZ and Ex.PZ/1 were submitted for conducting the post mortem examination of Smt. Sunita and Ankit respectively. The accused were then arrested and charge report (challan) was finalized by SI Devender Singh SHO Police Station Sadar Narnaul. The learned Additional Chief Judicial Magistrate, Narnaul (PW-12) in view of the offences under Sections 302 and 304-B IPC having been alleged and the same being exclusively triable by the Court of Session committed the case to the said Court for trial in terms of order dated 7.8.2004. The learned Sessions Judge, Narnaul vide order dated 24.9.2004 charged the appellants on the allegations that the death of Sunita wife of appellant No.2 (Dev Dutt) had occurred on 30.04.2004 in the area of village Barkoda otherwise than under normal circumstances within seven years of her marriage and soon before her death, the appellants in furtherance of their common Criminal Appeal No.688-DB of 2005 -5- intention subjected her to cruelty in connection with demand for dowry and thereby committed an offence punishable under Section 304-B read with Section 34 IPC. A separate charge was also framed on 24.9.2004 against Mewa Devi (appellant No.1) on the allegation that in the intervening night of 29/30.4.2004 in the area of Village Barkoda, Mewa Devi (appellant No.1) committed murder of Sunita by intentionally causing her death and thereby committed an offence punishable under Section 302 read with Section 34 IPC. The accused pleaded not guilty to the charge and claimed trial. The prosecution in order to prove its case examined as many as 17 witnesses; besides tendered documents in evidence. The statements of the appellants in terms of Section 313 CrPC were recorded. Smt. Mewa Devi (appellant No.1) stated that she was innocent and it was a false case. She had been falsely involved. Dev Dutt (appellant No.2), it was stated, was living separately from other members of the family. She and her husband were residing with Gajraj (appellant No.4) and his wife Kavita and their children who is the other son of Mewa Devi (appellant No.1). They were in a separate house and had separate ration card before the marriage of Dev Dutt (appellant No.2) with Sunita. At the time of alleged occurrence, she and her husband were away in the jungle to graze the goats. She had no concern with the affairs of the family of Dev Dutt (appellant No.2). Dev Dutt (appellant No.2) took the stand that it was a false case and he had been falsely involved. He was married with Sunita in December, 1999 because his first wife had died. He was having three children from his first wife. At the time of alleged occurrence, he was present at Government Primary School, Noni. Later he was informed about the incident. On 30.04.2004, at about noon time Kailash, Babu Lal, Mahabir and Surender were passing through the ‘kacha rasta’ (un-mettled pathway) where his house was situated. They observed that smoke was being emitted from his house. They tried to open the door but the door was bolted from the inside and then they cut a Plank with the help of a ‘Kulhari’ and on unbolting it, they found Sunita and his son Ankit in a burnt condition inside the house. He was informed that Ankit had already died and Sunita was unconscious. Criminal Appeal No.688-DB of 2005 -6- No family member of his house was present at that time. Krishan, Amar Singh and Moti arranged a car of Moti and brought Sunita and Ankit in that car at the STD booth of Vinod. They then took Vinod with them and went to Government Hospital, Narnaul. It is further stated that Sunita did not serve food to his children from his first wife and also used to assault and beat them and used to say that she would not keep the said children with her, but he used to state that he could not leave them. On the day of alleged occurrence in the morning when he left for school, Sunita had threatened him that in case his children from his first wife were not taken away, then she would teach a lesson to him. On this account, Sunita bolted the room from inside and burnt Ankit and then she committed suicide. He was living separately from the other members of his family. It was his second marriage with Sunita. Sunita was a divorcee from her first husband. He used to deposit Recurring Deposits in the Post Office account of Sunita and his son Ankit. He never harassed or demanded any dowry from Sunita or her parents. Vinod (appellant No.3) also stated that he was innocent and it was a false case against him. He was married before the marriage between Sunita (deceased) and Dev Dutt (appellant No.2). He along with his wife and children were residing separately from other members of the family. He was running a STD booth at Nasibpur and Gajraj (appellant No.4) was running a general store at Nasibpur. On the day of alleged time of occurrence on 30.04.2004, he was present at his STD booth. At that time, Krishan son of Sultan, Amar Singh son of Murli and Moti son of Sardara came to his STD booth in a car. Sunita and Ankit were in that car in a burnt condition. He accompanied them to Civil Hospital, Narnaul where Ankit was declared dead and Sunita was admitted in the hospital. He had no concern with the family affairs of Dev Dutt (appellant No.2). Gajraj (appellant No.4) stated that it was a false case and he had been falsely involved. He was living separately since 1999 before the marriage between Dev Dutt (appellant No.2) with Sunita. He was having separate house and separate ration card; besides, a separate business. He was running a grocery shop at Nasibpur. He had no concern Criminal Appeal No.688-DB of 2005 -7- with the family affairs of Dev Dutt (appellant No.2). He was not present at the time of alleged occurrence and was present at his shop at Nasibpur. In defence, the appellants examined Ram Sarup, Clerk, office of Assistant Food and Supply Office, Narnaul (DW-1) and he proved the ration card of Dev Dutt (Ex.DB) which was prepared on 2.4.1999 and the form of the ration card (Ex.DC). The excerpt of the relevant page of the register was Ex DD. Similarly on the request of Vinod (appellant No.3), his ration card was issued on 2.4.1999. Photocopy of which was Ex.DE and application form Ex.DF. Entry of this was available in excerpt Ex DD. A ration card of Gajraj (appellant No.4) brother of Dev Dutt was Ex.DG and application form thereof was Ex.DH. Entry of the same was available in excerpt Ex DD. In the ration card of Giriraj @ Gajraj (appellant No.4), addition of one name namely Miss. Kavita was made, which was added on 02.6.2000. She was added as wife of Giriraj. Application on the basis of which this addition was made was Ex.DI. Entry of this addition was also there in the excerpt Ex DD. It is stated that after request for making a ration card was received, verification was made by Inspector of their Department with regard to the corrections of particulars in the application form and only thereafter the ration card was issued. Smt. Sarla Devi (DW-2) an agent of the Recurring Deposits, Post Office was also examined in defence. It was stated by her that she was an agent for Recurring Deposits in the main Post Office, Narnaul. She knew Sunita (deceased). Dev Dutt (Appellant No.2) had got a Recurring Deposit account opened in her name. The application was retained in the Post office. Photocopy of passbook of the said Recurring Deposit account was Ex.DJ. An amount of Rs.500/- used to be deposited with Smt Sarla Devi (DW2) every month by Dev Dutt (appellant No.2) in the account of Smt. Sunita. The last payment was made on 27.04.2004. Similarly, a Recurring Deposit account in the name of Ankit son of Dev Dutt (appellant No.2) was opened through her and payment of Rs.300/- each month used to be made by Dev Dutt (appellant No.2). Photocopy of the Passbook was Ex.DK. Omparkash, Shopkeeper Criminal Appeal No.688-DB of 2005 -8- resident of Nasibpur (DW-3) was examined in defence. He stated that he had rented out one shop to Vinod (appellant No.3) vide rent note dated 26.9.2003 (Ex.DL). Gajraj (appellant No.4) was also known by the name of Giriraj and another shop had been rented out to him but no rent note was executed. The shop which was on rent with Gajraj @ Giriraj (appellant No.4) had since been vacated by him. Yogesh Kumar, Teacher resident of Bargaon (DW-4) was examined in defence who stated that he was working as a Teacher in Government Middle School in Nooni as S.S. Master. He was acting Headmaster w.e.f. 19.9.2001. There was a combined building for the middle and primary school. On 30.04.2004, Dev Dutt (appellant No.2) was in the school on the said date. The timings of the school were from 8.00 am to 2.00 pm. He remained in school till even after the close of the school for about 10 minutes. In between he had not gone anywhere. Kailash Chand (DW-5) in defence has deposed that on 30.4.2004 at about 1.30 pm, he accompanied Babu Lal and Surender. At the prompting of learned defence counsel, Kailash Chand (DW5) stated Suresh instead of Surender were going from village towards their well. When they reached near the colony near the house of Dev Dutt (appellant-2), they saw smoke was emitting from his house. When they went to his house, the door was closed from inside. They tried to open the door but could not do so. The door was then axed through the right portion. The bolt (iron chain) was then got opened to make an entry in the house. They entered the house and saw that Ankit was no more and Sunita was unconscious. They also had caught fire. They lifted Sunita and put her on a cot and then arranged for the vehicle of Moti Lal and took her in the vehicle to the hospital. Amar Singh had also accompanied them to the hospital where Sunita and Ankit had been taken. No one was found in the house of Dev Dutt at that time. It is further stated by Kailash Chand (DW5) that accused – Vinod, Gajraj and Dev Dutt were living separately. The house of Vinod was at a distance of about 200 yards from the house of Dev Dutt. Gajraj was living in the old Abadi. Old Basti and the new colony are at a distance of about 800 yards. He had shown the axed portion of Criminal Appeal No.688-DB of 2005 -9- the door to the Police. Moti Lal (DW-6) was examined. He stated that he got an Ambassador Car and he took Sunita wife of Dev Dutt (appellant No.2) in a burnt condition to Civil Hospital, Narnaul. Amar Singh had accompanied them. He came driving the car to Nasibpur. Gajraj (appellant No.4) was having a STD booth in Nasibpur. Another son of Ram Chander was also having a shop there. They were also taken along to the hospital. In cross-examination it is stated that he had no document to show that the car was owned by him. However, he had an affidavit at his residence. Rattan Lal, Assistant Post Master, Recurring Deposit Branch, Narnaul (DW-7) was examined. He had brought Recurring Deposit Passbook (Ex.DK) of Ankit and the pass book (Ex.DJ) of Smt. Sunita. These accounts had been opened through Smt. Sarla Devi, Agent (DW2). Vinod Kumar (DW-8) was also examined in defence. He stated that on 30.4.2004, he was working as Peon, Government Primary School, Nooni-II. At that time, Ram Niwas was the Head Master of the school. Dev Dutt (appellant No.2) had come to the school at 7.50 am on 30.04.2004 and he had remained in school till 2.10 p.m. and had not gone anywhere in between. The school used to open at 7.50 am and the closing time was 2.10 pm. The Primary School and Middle School were in the same building. He was working as Peon-cum- chowkidar and was required to be there for 24 hours. He had brought the attendance register, excerpt (photocopy) of the relevant entry was Ex.DN. Mangal Singh (DW- 9) was also examined. He was Sarpanch of Village Barkoda. He proved the receipt (Ex.DO) which was issued by the Panchayat. The counterfoil of the receipt was available on the record which he had got. Besides, he proved the receipt (Ex.DQ) issued by their panchayat by Omparkash who was Sarpanch in the year 1999. Excerpt of the relevant entry of the register (copy) was Ex.DR. Receipt (Ex.DS) has its corresponding entry in register which entry (Excerpt) was Ex.DT. Counterfoil was also available in the receipt book which he had brought. Ex.DS was in the name of Ram Chander son of Gori Shai. They were living in separate houses. Ram Chander however was living with Giriraj who was married and had a family. In the Criminal Appeal No.688-DB of 2005 -10- marriage of Dev Dutt (appellant No.2) no dowry was given. Dhan Singh (DW-10) was examined. He was a mediator to the marriage between Smt. Sunita and Dev Dutt (appellant No.2). It is stated that there was no demand for dowry and no dowry even otherwise was given. Besides, it was the second marriage of Dev Dutt (appellant No.2) as well as Smt. Sunita (deceased). Sunita was the daughter of Arjun Singh and the latter was known to him as he had worked in the PWD Department as a Gangman at the road which was near the railway level crossing where he was posted as Gateman of Railway level. Otherwise also village of Arjun father of Smt. Sunita was only 10 kms away from his village. The parents of Smt. Sunita never complained to him about her harassment or for demand of dowry from the side of in- laws of Smt. Sunita. Bhadur Singh, Labourer of Village Barkoda (DW-11) was examined. His house was just opposite the house of Dev Dutt (appellant No.2). It is stated by him that Dev Dutt (appellant No.2) used to keep his wife very nicely and no beating was given to her by anyone either in the night of 29.04.2004 or in the morning of 30.4.2004. The house of Vinod (appellant-3) was at a distance on 50-60 yards from the house of Dev Dutt (appellant No.2). The house of Ram Chander was at a distance of 500 yards from Dev Dutt (appellant No.2). Gajraj (appellant No.4) was living with his father Ram Chander along with his children. Smt. Sunita (deceased) was never harassed by the accused regarding dowry. Copy of judgment (Ex.DU) was tendered in evidence and the defence evidence was closed. The learned trial Court after considering the evidence and material on record has convicted the appellants for the offence under Section 304-B and Mewa Devi (appellant No.1) for the offence under Section 302 IPC and has been sentenced to imprisonment for life. Besides, a fine of Rs.5000/- for the offence under Section 302 IPC. In default of payment of fine, she is to undergo further imprisonment for a period of six months. For the commission of offence punishable under Section 304- B, Mewa Devi (appellant No.1) has been sentenced to undergo imprisonment for 10 years. Both the sentences were ordered to run concurrently. Insofar as the conviction Criminal Appeal No.688-DB of 2005 -11- of Dev Dutt (appellant No.2) is concerned, he was sentenced to undergo imprisonment for 10 years for the offence under Section 304B IPC. Vinod (appellant No.3) and Gajraj (appellant No.4) who are the younger brothers of the husband of deceased Smt. Sunita were convicted for the offence under Section 304-B IPC and sentenced to undergo imprisonment for seven years each. The said orders, as already noticed, are assailed by the appellants. Sh. Baldev Singh, learned Senior Counsel appearing with Mr. Deepinder Singh and Mr. Arshwinder Singh, Advocates for the appellants has contended that the learned trial Court has committed a grave irregularity and illegality in passing the impugned order of conviction. It is submitted that the dying declaration (Ex.PT) of Smt. Sunita (deceased) that has been recorded is an incomplete account and no reliance whatsoever can be placed on the said statement. It is further submitted that in any case Smt. Sunita (deceased) had received 100% burns and cannot be said to be in a fit state to depose in the manner as has been alleged. Besides, it is submitted that the evidence and material on record shows that the door of