Crl. Appeal No.425-DB of 2002 1 In the High Court of Punjab and Haryana, Chandigarh. Crl. Appeal No.425-DB of 2002 Date of Decision: 15.02.2008 Sumitra ....Appellant. Versus State of Haryana ....Respondent Coram:- Hon'ble Mr.Justice J.S. Khehar. Hon'ble Mr. Justice Sham Sunder. Present: Mr. Rajbir Shehrawat, Advocate for the appellant. Mr. J.S. Toor, Addl. A.G., Haryana for the respondent. ... J.S. Khehar, J. The instant appeal has been filed against the judgement rendered by the Additional Sessions Judge, Rohtak, dated 9.4.2002, whereby the accused/appellant - Sumitra has been held guilty of having committed the murder of Sunita, under Section 302 of the Indian Penal Code. By a separate order dated 11.4.2002, the accused/appellant – Sumitra, after being heard on the question of sentence, has been sentenced to undergo life imprisonment and to pay a fine of Rs.500/-. In default of payment of fine, she has been ordered to further undergo rigorous imprisonment for one month. The prosecution version of the incident is based on the Crl. Appeal No.425-DB of 2002 2 sequence of events emerging out of the death of Ishwar Singh, his wife Sunita and their two daughters Renu and Reetu. Deceased – Ishwar Singh is stated to be employed in the army. Ishwar Singh deceased is stated to have returned to his village Ajaib on 18.12.1998 on 15 days leave from the army. Although, the parental family of Ishwar Singh lives at village Ajaib, his wife Sunita always stays with her own parents during the period Ishwar Singh is away. On 18.12.1998, in order to collect his wife from Jai Jai Wanti i.e. the village where the parents of his wife reside, Ishwar Singh is alleged to have proceeded towards village Jai Jai Wanti before going to his own village Ajaib. Having taken his wife Sunita and children, Renu and Reetu from village Jai Jai Wanti, he is alleged to have reached the village of his parents Ajaib, on 18.12.1998 itself. During the intervening night of 18/19.12.1998, some persons from village Ajaib reached village Jai Jai Wanti and contacted Sunita's brother Jagbir PW13 and informed him, that Ishwar Singh, Sunita, and their two daughters Renu and Reetu had been burnt. They also informed him, that while Ishwar Singh and the two daughters Renu and Reetu had succumbed to their burn injuries, Sunita was still alive, and that, she had been admitted at the Post-graduate Institute of Medical Sciences and Research, Rohtak (hereinafter referred to as the PGIMS, Rohtak). On receipt of the aforesaid information, Jagbir PW13, his wife Anita and uncle Ram Bhagat PW14, alongwith several other persons of the village, proceeded towards Rohtak. On the way, when they had reached village Lakhan Majra, they were told by certain persons belonging to village Ajaib, that Sunita had not been taken to Rohtak, and that, she was still at village Ajaib. Jagbir PW13, his wife Anita and uncle Ram Bhagat PW14 then proceeded towards village Ajaib. Having reached village Ajaib, they Crl. Appeal No.425-DB of 2002 3 found that the eyes of Sunita had been burnt, and as such, she was not able to see, but she had recognised them and others on the basis of their voices. On meeting Sunita, Jagbir PW13 asked her as to what had happened. Whereupon, Sunita informed them, that Sumitra, wife of Ratan (younger brother of her husband Ishwar Singh) had poured kerosene oil on all the members of her family while they were sleeping, and then put them on fire. According to the narration of Sunita to Jagbir PW13, despite being engulfed in fire, she had followed Sumitra, who had gone down stairs, and that, Sunita had seen Sumitra entering the main house. In the middle of the stair case, however, Sunita explained that she having been fully engulfed in the flames of fire, became helpless and fell down. After listening her version of the incident, Jagbir PW13 i.e. the brother of Sunita, wanted to immediately shift his sister to the PGIMS, Rohtak. However, he was not allowed to do so by 100/150 persons of village Ajaib, unless Sunita took the blame of the fire on herself. In order to get his sister medically treated without any further delay, Jagbir PW13 is stated to have agreed to the suggestion. Whereupon, Sunita, as well as, the dead bodies of Ishwar Singh, Renu and Reetu were taken to the PGIMS, Rohtak. On the same day i.e. on 19.12.1998, Sunita was medically examined. Her medical examination revealed, that she had suffered 75-80% burn injuries. On the following day i.e. on 20.12.1998, Sunita was declared fit to make a statement. ASI Kamlesh Kumar PW16, accordingly, approached the Chief Judicial Magistrate, Rohtak, for recording her statement. Although, Sunita had been declared fit to make a statement at 3.15 PM, however, when Mr. Bhupinder Nath, Judicial Magistrate Ist Class, Rohtak, was to commence to record her statement, she lost her senses, and on her re-examination she was declared Crl. Appeal No.425-DB of 2002 4 unfit to make a statement. On 21.12.1998, Sunita was again declared fit to make a statement. Whereupon, at the instance of the investigating officer, Ms. Sunita Goyal, Judicial Magistrate Ist Class, Rohtak, reached the PGIMS, Rohtak to record her statement. Prior to recording her statement, the doctor on duty declared Sunita fit to make a statement at 4.15 PM. Ms. Sunita Goyal, Judicial Magistrate Ist Class, Rohtak, then proceeded to record the statement of Sunita. After the statement of Sunita had been fully recorded, another opinion in respect of her fitness was sought. Yet again, at 4.40 PM, Sunita was again declared fit. While making her statement, Sunita asserted, that the wife of the younger brother of her husband, Sumitra had burnt her. According to the narration of Sunita, when every body had gone to sleep, Sumitra had come to their room. Whilst they were sleeping, she sprinkled kerosene oil on them and then lit the same with a match stick. After having put them on fire, Sumitra was proceeding to leave. At that juncture, Sunita having woken up raised an alarm. Neighbours from the vicinity rescued her by covering her with a quilt and by throwing ash on her. She also stated, that in the incident, Ishwar Singh her husband and both her daughters, Renu and Reetu had died. After Sunita's statement was recorded by the Judicial Magistrate Ist Class, Rohtak, on 21.12.1998, a First Information Report bearing No.455 was registered at Police Station, Meham in district Rohtak, on 21.12.1998 at 6.30 PM under Section 302 of the Indian Penal Code. After the registration of the aforesaid First Information Report, the Investigating Officer ASI Kamlesh Kumar PW16, having gone to the place of occurrence, inspected the same and prepared a rough site plan. From the place of occurrence, he recovered an empty bottle smelling of Crl. Appeal No.425-DB of 2002 5 liquor, glass pieces, ash, some burnt letters and parts of some burnt door planks. He prepared parcels of the aforesaid objects, except the semi burnt door planks. They were sealed and taken into possession. He had also prepared the inquest report and recorded the statements of Jagbir PW13 (Sunita's brother) and Ram Bhagat PW14 (Sunita's uncle). He also stated, that the aforesaid statements were made to him voluntarily. In so far as, the statement of Sunita which was recorded by Ms. Sunita Goyal, Judicial Magistrate Ist Class, Rohtak on 21.12.1998, is concerned, he noted that no one other than the Magistrate was with Sunita at the time when the same was recorded. On the completion of investigation, a challan was presented on 3.7.1999 before the Judicial Magistrate Ist Class, Rohtak. By an order dated 30.7.1999, the Judicial Magistrate Ist Class, Rohtak, concluded that a prima-facie case punishable under Section 302 of the Indian Penal Code was made out against the accused. Since the offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Session, the Judicial Magistrate Ist Class, Rohtak by his order dated 30.7.1999 committed the case to the Court of Session for trial. On 8.9.1999, the Additional Sessions Judge, Rohtak, charged the accused/appellant – Sumitra for having committed the murder of Ishwar Singh, his wife Sunita, and their daughters Renu, aged 3 years and Reetu (Dhauli) aged 8 months, under Section 302 of the Indian Penal Code. The accused when confronted with the charge level against her, pleaded not guilty and claimed trial. During the course of the trial, the prosecution examined a number of witnesses. A brief description of the statement of witnesses produced by the prosecution, is being summarised hereunder. The Crl. Appeal No.425-DB of 2002 6 prosecution, first of all, examined Gian Chand, Ahlmed in the Court of Ms. Sunita Goyal, Judicial Magistrate Ist Class, Rohtak, as PW1. Gian Chand PW1 produced the envelop containing the statement of the deceased – Sunita recorded under Section 164 of the Criminal Procedure Code. SI Jai Parkash was produced by the prosecution as PW2. SI Jai Parkash PW2 had partly investigated the case and recorded some statements under Section 161 of the Criminal Procedure Code. Constable Radhey Sham was produced as PW3. He is stated to have prepared the scaled site plan Ex.PA, of the place of occurrence alongwith its marginal notes. The statement of Ravinder Kumar was recorded as PW4. Ravinder Kumar PW4 tendered into evidence his affidavit Ex.PB. A perusal of his affidavit reveals, that he had delivered the special report to the Ilaqa Magistrate, Rohtak at 1.30 PM. The statement of Mr. Bhupinder Nath, Judicial Magistrate Ist Class, Rohtak, was recorded as PW5. As per his statement, he had received an application from ASI Kamlesh Kumar PW16, to record the statement of Sunita. He had, accordingly, proceeded to the PGIMS, Rohtak to record her statement. Although, the doctor at the hospital initially opined, that Sunita was fit to make a statement, but she had collapsed in the meantime and, therefore, her statement could not recorded. The statement of Dr. R.P. Verma was recorded as PW6. Dr. R.P. Verma PW6 had medico-legally examined Sunita when she was brought to the hospital with burn injuries. According to Dr. R.P. Verma PW6, Sunita had suffered 75-80% burn injuries. The statement of Dr. Asha Goyal was recorded as PW7. Dr. Asha Goyal had conducted the postmortem examination on the dead bodies of Ishwar Singh, Renu and Reetu on 19.12.1998. In the opinion of Dr. Asha Goyal PW7, the cause of death of Ishwar Singh, Renu and Reetu was on account of shock as Crl. Appeal No.425-DB of 2002 7 a result of 100% burn injuries, which were ante-mortem in nature, and were sufficient to cause death in the ordinary course of nature. The statement of Ms. Sunita Goyal, Judicial Magistrate Ist Class, Rohtak was recorded as PW8. She deposed, that an application had been made to her by ASI Kamlesh Kumar PW16 to record the statement of Sunita. She also stated, that the doctor on duty at the PGIMS, Rohtak, had given his opinion Ex.PT to the effect, that Sunita was fit to make her statement. She also asserted, that she had recorded the statement of Sunita correctly without any addition or omission. She proved in Court the statement of Sunita Ex.PV which had been in hand written by her, and which also bore her signatures. After the statement of Sunita had been recorded, Dr. Hari Singh Saini PW21 certified, that Sunita had remained fit during the recording of her statement. Ms. Sunita Goyal PW8 also stated, that Dr. Hari Singh Saini had remained present with her all the time whilst she had recorded the statement of Sunita. She also affirmed, that the attendants of other patients had been asked to leave the room when the statement of Sunita was recorded. At the time of recording the statement of Sunita, ASI Kamlesh Kumar PW16 had been asked to stand outside the room. The prosecution then produced Head Constable Phool Singh as PW9. He tendered into evidence his affidavit Ex.PAA. A perusal of Ex.PAA reveals, that HC Phool Singh PW9 had deposited certain samples taken from the place of occurrence in the Malkhana of Police Station, Meham, and subsequently he had handed over those samples to Constable Krishan Kumar for delivering them to the Forensic Science Laboratory, Madhuban. Head Constable Sube Singh appeared as PW10. He deposed that he had recorded the formal First Information Report consequent upon the receipt of the statement of Sunita, Crl. Appeal No.425-DB of 2002 8 despatched to the police station by ASI Kamlesh Kumar PW16. The statement of Dr. Pinaki from the PGIMS, Rohtak, was recorded as PW11. Dr. Pinaki PW16 affirmed that an application was made by the police on 20.12.1998 requiring him to opine, whether or not, Sunita was fit to make a statement. He had given his opinion at 3.15 PM on 20.12.1998 to the effect, that Sunita was fit to make a statement. However, by the time the judicial officer had reached the hospital to record the statement of Sunita, he had recorded another statement at 3.30 PM, that Sunita was not fit to make a statement. Sukhbir Singh appeared as PW12. He produced the original record enclosed with bed head ticket of Sunita from the PGIMS, Rohtak. The prosecution examined Jagbir as PW13. Jagbir PW13 is none other than the brother of deceased – Sunita. During the course of his deposition, he asserted, that his sister Sunita was married to Ishwar Singh. He also confirmed, that Ishwar Singh was employed in the Indian Army, and that, Sunita remained with her parental family while her husband Ishwar Singh was on duty. However, whenever he returned to his village on leave, she used to accompany him to her in-laws house. Sunita is stated to have two daughters Renu and Reetu. On 18.12.1998, when Ishwar Singh had come on leave, he had taken his wife (Sunita) to her in-laws house. Sunita had also taken her daughters to her matrimonial home on 18.12.1998. On the following day i.e. on 19.12.1998, at 4.30/5.00 AM, 4/5 persons from village Ajaib had informed Jagbir PW13 that Sunita, her husband Ishwar Singh and their daughters Renu and Reetu had suffered burn injuries. They informed them, that Ishwar Singh, Renu and Reetu had died, whereas Sunita was struggling with her life at the PGIMS, Rohtak. Accordingly, Jagbir PW13, his wife Anita and his uncle Ram Bhagat PW14, besides Ranbir, Sarpanch Crl. Appeal No.425-DB of 2002 9 of the village and 3/4 other persons proceeded towards Rohtak. However, when they had reached village Lakhan Majra, they were informed that Sunita was still at village Ajaib. Accordingly, they had proceeded to village Ajaib. At village Ajaib, according to the statement of Jagbir PW13, he had found that his sister Sunita was in proper senses, despite the fact, that her eyes had been burnt, she was able to identify them by their voices. Sunita's uncle Ram Bhagat PW14 enquired from her how it had all happened. Sunita informed them that Sumitra had entered their room and poured kerosene oil on her husband, her daughters. At that stage, Sunita had woken up. However, before she could raise an alarm, Sumitra had set them on fire. Despite having been put on fire, Sunita claimed that she had followed Sumitra. However, on account of being engulfed by the flames, she had collapsed and had fallen down. However, Sunita stated that she had seen Sumitra entering the house at the ground floor and closing the door. Jagbir PW13 also asserted, that about 150 people of the village Ajaib had collected there and prevented them from taking Sunita to the PGIMS, Rohtak, till Sunita took upon herself the responsibility of the incident. Since Sunita needed medical treatment immediately, they had agreed to the demand of the villagers. Thereafter, Sunita alongwith the dead bodies of Ishwar Singh, Renu and Reetu were taken to the PGIMS, Rohtak. At the hospital, Sunita insisted on making a truthful statement. Before her death on 22.12.1998, she recorded her statement on 21.12.1998. The factual position depicted by Jagir PW13 was reiterated by the uncle of deceased – Sunita i.e Ram Bhagat PW14. The statement of Constable Krishan Kumar was recorded as PW15. He affirmed that he had taken two sealed parcels and delivered them at the Forensic Science Laboratory, Madhuban. The Crl. Appeal No.425-DB of 2002 10 statement of the Investigating Officer Kamlesh Kumar was recorded as PW16. He affirmed that he was the Investigating Officer of the case and recorded the formalities required to be conducted by him during the course of the investigation of this case. The statement of Dr. Ajay Kumar Goel, Medical Officer, T.B. Centre, Rohtak was recorded as PW17. He had conducted the postmortem examination on the dead body of Sunita on 22.12.1998. According to his opinion, the cause of death of Sunita was due to extensive burns and consequential complications thereof. He opined, that the burn injuries were ante-mortem in nature, and were sufficient to cause death in the ordinary course of nature. The statement of Dr. S.S. Dahiya was recorded as PW18. He asserted, that on 19.12.1998, Sunita was admitted to his ward with burn injuries. The police had asked him to give his opinion, whether or not, she was fit to make a statement. On 19.12.1998 at 2.45 PM, he had opined, that she was not fit to make a statement. The statement of Gian Singh was recorded as PW19. His statement is formal relating to the arrest of the accused/appellant – Sumitra. The statement of SI Ramphal Singh was recorded as PW20. His statement was also formal in nature as he had partly investigated the case by recording the statements of Jagbir PW13, Anita wife of Jagbir, and Ram Bhagat PW14 under Section 161 of the Criminal Procedure Code. Last of all, the prosecution examined Dr. Hari Singh Saini, Medical Officer, Civil Hospital, Kaithal as PW21. He affirmed, that he had recorded the certificate Ex.PT/1 on 21.12.1998, that Sunita was fit to make a statement. He also asserted, that he had remained present with Ms. Sunita Goyal, Judicial Magistrate Ist Class, Rohtak, when the statement of Sunita was recorded by the Magistrate. Having examined the aforesaid witnesses, the prosecution Crl. Appeal No.425-DB of 2002 11 evidence was closed on 28.3.2002. The statement of accused – Sumitra was recorded under Section 313 of the Code of Criminal Procedure, on 2.4.2002. The incriminating evidence appearing on record was put to the accused/appellant Sumitra. She denied the same. In her statement, she claimed that she was sleeping on the ground floor of her house with her husband and her mother-in-law and the other members of the family were sleeping adjoining to the main gate, and that, she could not have gone out from her room unnoticed by her mother-in-law and other members of family. She also stated, that she has been falsely implicated in the case. In her defence, accused – Sumitra produced Gunwati as DW1. Gunwati DW1 is the mother of deceased – Ishwar Singh and the mother-in- law of accused – Sumitra. According to the statement of Gunwati DW1, deceased – Ishwar Singh, his wife Sunita and daughters Renu and Reetu were sleeping in the “chabutra” of their house. On the said night, Sumitra was sleeping on the ground floor inside the room, whereas she herself i.e. Gunwati PW1 was sleeping outside the room near the main gate of her house. She also asserted, that the accused/appellant – Sumitra did not go out of the house at night on the fateful day; as she would have definitely seen her going outside, if she had done so since she was sleeping near the main gate. She also asserted, that when she saw Sunita on the date of occurrence, she was on fire and Ranbir DW2 was trying to put out the flames. Ranbir appeared as DW2. He is living in the vicinity of the house where the occurrence took place. On the night of 18.12.1998 between 3/3.15 AM, he claims that he heard dogs' barking and had resultantly woken up. Having come out of the cattle shed, he had seen flames in the Crl. Appeal No.425-DB of 2002 12 “chabutra” of the house where the alleged occurrence under reference had taken place. He claims to have rushed towards the house where he met the deceased Sunita i.e., the wife of Ishwar Singh, who was engulfed in flames. He also disclosed the various efforts made by him to put out the flames. Having done so, he knocked at the door of the ground floor. However, no one came out. Whereupon, he went to the “chabutra” and noticed Ishwar Singh lying dead in front of the stair case. According to Ranbir DW2, the “chabutra” was still on fire, and therefore, he could not enter the same. He also asserted, that he had asked Sunita as to how all this had happened. She had informed him, that it had happened on account of her own mistake. Thereafter, he came down from the “chabutra” and saw that the entire family had come out of the house. He claims to have narrated the incident, as has been recorded in his statement, to the police. Having recorded the statement of the aforesaid two witnesses in her defence, the accused/appellant – Sumitra closed her defence evidence on 6.4.2002. The Additional Sessions Judge, Rohtak, delivered the judgement in Sessions Case No.29 of 1999, on 9.4.2002. The accused – Sumitra was held guilty of having committed the murder of Ishwar Singh, Sunita and their two daughters Renu and Reetu, and was accordingly, convicted under Section 302 of the Indian Penal Code. The Additional Sessions Judge, Rohtak, then heard the accused on the question of sentence. By his order dated 11.4.2002, the accused Sumitra was sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-, under Section 302 of the Indian Penal Code. In default of payment of fine, she was ordered to undergo further rigorous imprisonment for a period of one month. Crl. Appeal No.425-DB of 2002 13 The judgement of the Additional Sessions Judge, Rohtak, dated 9.4.2002, and the order of sentence dated 11.4.2002, are subject matter of challenge at the hands of appellant – Sumitra, through the instant appeal. A perusal of the evidence produced by the prosecution, as well as, the judgement rendered by the Additional Sessions Judge, Rohtak, reveal that the statement made by the deceased – Sunita to her brother Jagbir PW13 and to her uncle Ram Bhagat PW14 on 19.12.1998, as well as, the dying declaration of deceased – Sunita, recorded by Ms. Sunita Goyal, Judicial Magistrate Ist Class, Rohtak PW8 on 21.12.1998, constituted the foundation of her conviction. Reliance was also placed on the statements of Jagbir PW13 and Ram Bhagat PW14 so as to explain away the statement made at village Ajaib that the deceased Sumitra had told the members of her paternal family that she was not aware about the manner in which the room had caught fire, as also, the statement made at village Ajaib, before Sunita was taken to PGIMS, Rohtak, that no one was at fault for the occurrence. It would be pertinent to mention that the statement referred to above, was recorded by the investigating officer ASI Kamlesh Kumar PW16 at the time of preparation of the inquest report Ex.PJ. Besides the aforesaid ocular evidence, the prosecution heavily relied on expert medical evidence produced by way of the statements of Dr. R.P. Verma PW6, Dr. Asha Goyal PW7, Dr. Pinaki PW11, Dr. Ajay Kumar Goyal PW17, Dr. S.S. Dahiya PW18 and Dr. Hari Singh Saini PW21. Since the dying declaration of Sunita Ex.PV has been the primary basis of the determination rendered by the trial Court alongwith the endorsement thereon (pertaining to her fitness to make her statement) the translated version of the said dying declaration made on 21.12.1998, alongwith its endorsements, is being Crl. Appeal No.425-DB of 2002 14 extracted hereunder:- “Statement of Sunita w/o Ishwar Singh Jat r/o Not given now admitted in