CRIMINAL APPEAL NO. 648-DB OF 2000 -1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: October 15, 2009. Parties Name Sunil Kumar ..APPELLANT VERSUS State of Punjab ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE JUSTICE MRS. DAYA CHAUDHARY PRESENT: Mr. Ajay Kaushik, Advocate, for the appellant. Mr. D.S. Brar, D.A.G., Punjab, for the respondent. JASBIR SINGH, J. ORDER. Vide judgment and order dated November 13, 2000, the appellant was convicted for commission of offences under Sections 302 and 498-A IPC. He was sentenced to undergo life imprisonment and directed to pay a fine of Rs. 4,000/-, with a default clause, for offence under Section 302 IPC. He was further sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs. 1,000/-, with a default clause, for offence punishable under Section 498-A IPC. Both the sentences were ordered to run concurrently. It was allegation against the appellant that on February 7, 1997, he caused burn injuries to his wife, namely, Sunita, who died in the hospital CRIMINAL APPEAL NO. 648-DB OF 2000 -2 on February 23, 1997. Process of criminal law was set in motion on a statement (Ex. PK) made by deceased Sunita to Swarn Singh, ASI, the Investigating Officer, on February 8, 1997. Subsequent thereto, on a request made by the Investigating Officer, Shri Surinder Singh Sahni, Judicial Magistrate Ist Class (PW12), also recorded statement of the deceased on that very date, on the basis of which formal FIR Ex. PK/2 was recorded against the appellant for commission of offences punishable under Sections 307 and 498-A IPC. The Investigating Officer went to the spot, took into his possession a bottle containing kerosene oil, half burnt clothes of the deceased, i.e., Jumper, shirt, pillow and one match box vide recovery memos. He arrested the appellant – accused on February 9, 1997. The appellant – accused was medico legally examined by Dr. Gurpal Singh (PW7). The Investigating Officer recorded statements of Des Raj (PW2), father of the deceased, Rakesh Kumar (PW10), brother of the deceased, and Krishna Kumari (PW11), a relation of the deceased. The deceased was discharged, on her request from Civil Hospital at Jalandhar on February 12, 1997. Thereafter, she was admitted in a private hospital, where she died on February 23, 1997. After her death, offence under Section 302 IPC was added in the FIR. The Investigating Officer prepared the inquest report of the dead body, sent it for post-mortem examination, which was conducted by Dr. Ajay Sahni (PW3). On completion of investigation, final report was put in Court for trial. The appellant was charge-sheeted for commission of offences under Sections 302, 304-B and 498-A IPC, to which he pleaded not guilty and claimed trial. The prosecution produced 16 witnesses and also brought CRIMINAL APPEAL NO. 648-DB OF 2000 -3 on record documentary evidence to prove its case. On conclusion of prosecution evidence, statement of the appellant – accused was recorded under Section 313 Cr.P.C., in which he denied allegations of the prosecution, claimed innocence and false implication. However, he led no evidence in defence. Vide the impugned judgment and order dated November 13, 2000, he was convicted and sentenced as found mentioned in earlier part of this order. Hence this appeal. Counsel for the appellant has vehemently contended that the prosecution has miserably failed to prove guilt of the appellant – accused beyond a shadow of reasonable doubt. To support his contention, he argued that the case of the prosecution is based solely on statements made by the interested witnesses. Though available, no independent witness was joined in the investigation. Father of the appellant – accused, who had seen the entire occurrence, was not brought in the witness-box. He further argued that as per evidence on record, the deceased was a Matriculate, however, on her statement, she had not put her signatures. Counsel further stated that recording of alleged dying declaration is not as per norms. In the alternative, without conceding anything, he argued that there was no intention on the part of the appellant – accused to cause death. It was a case of sudden fight between husband and the wife and without any preparation, under fit of anger, the appellant – accused may have caused burn injuries to the deceased. He further mentioned that the appellant – accused immediately tried to extinguish the fire and received burn injuries on his both hands. By stating as above, it was prayed that the appeal be allowed, judgment and order under challenge be set aside and the appellant be acquitted of the charges framed against him. CRIMINAL APPEAL NO. 648-DB OF 2000 -4 Prayer made has vehemently been opposed by the State counsel, who, by making reference to the medical evidence on record, deposition made by Des Raj (PW2), Rakesh Kumar (PW10) and Krishna Kumari (PW11), argued that from the very beginning, after marriage, the appellant had been beating the deceased for dowry. He further argued that the statement of the deceased was recorded firstly by ASI Swarn Singh (PW13) and thereafter by a Magistrate, as such, there is no reason to doubt those statements. He also argued that causing of the burn injuries was intentional and as such no leniency be shown to the appellant – accused. He prayed that the appeal having no substance be dismissed. After hearing counsel for the parties, this Court is to analyse as to whether on account of criminal act, committed by the appellant – accused, Smt. Sunita had died on February 23, 1997? It is apparent from the records that the incident had occurred on February 7, 1997. On receipt of intimation (Ex. PA),from a doctor, ASI Swarn Singh (PW13) went to the Civil Hospital, where the deceased was lying admitted on receipt of burn injuries. After getting opinion regarding fitness, he recorded statement of the deceased Ex. PK, wherein she alleged that the burn injuries were caused to her by the appellant – accused, for demand of money from her parents. To be on the safer side, the Investigating Officer made a request, upon which statement of the deceased was recorded by Shri Surinder Singh Sahni, Judicial Magistrate Ist Class, (PW12) on February 8, 1997. Relevant portion of the statement, made by the deceased, reads thus: “I was married about five years back. I have two children, one son and one daughter who is four months old. After the CRIMINAL APPEAL NO. 648-DB OF 2000 -5 marriage I am residing along with my husband in house No. 284-WP, Basti Sheikh, Jalandhar. Besides it my father-in-law also resides with them. Still one month was not completed to my marriage then my husband started asking me as to what dowry I had brought. My husband had beaten me many times for bringing insufficient dowry. He gave me beatings with belt before the birth of my son. At that time also my husband gave me beatings with belt and turned me out of the house. My husband has been taking liquor. He has passed LL. B and he started practising in the Court but he was not successful in the legal profession and he left the same and opened a provision store. Her father-in-law gave a sum of Rs. 80,000/- for shop in instalments which he wasted in the liquor. My husband under the influence of liquor used to give filthy abuses and has been abusing his brothers as well as has been saying that I am siding with his father and brothers. My husband used to lift domestic articles and after selling it he used to consume the liquor. Yesterday, it being Massya day, my husband went to some place at village Kala Sanghian where liquor is distributed freely by way of PARSHARD. Her husband had gone to Kala Sanghian early in the morning at 9.00 and returned at 3.30 PM. I asked him to take meal but my husband told me that I should not heat up the food and same be given as it is. I provided food to him but he did not take the same and started abusing me at hot pitch he started proclaiming to the people that he is not being provided food. Then my husband enquired from me in CRIMINAL APPEAL NO. 648-DB OF 2000 -6 whose favour I had casted the vote and I replied that I had casted the vote in favour of Panja symbol. My son asked his Pappa why he is abusing and at this my husband lifted him and threw him on the ground and then my daughter who is aged about four months was also beaten. I went outside to call my father-in-law. When I returned back, I found that the house was lying locked and my daughter was all alone inside the house. My father-in-law went to my husband and brought the keys of the house. I opened the lock of the house and went inside where my daughter was weeping. My husband along with my father-in-law came back and on entering into the house he hearld filthy abuses on me and after putting a bottle on me he lit me to fire. Kerosene oil bottle was lying in the house. After setting me on fire then my husband started extinguishing the fire. My father-in-law on hearing noise also came from another room of the house and he extinguished the fire. My husband also quarreled with my father-in-law. My father in law called my mother's sister, who is also residing in the adjoining area and my mother's maternal aunt. My husband be given severe punishment and none else is at fault. On seeing that ladies had collected, my husband went out side from the other side.” Record further reveals that the deceased was medico legally examined by Dr. G.S.Toor (PW1) on February 7, 1997, at about 8.50 PM. As per opinion, the deceased had received 35% burn injuries. It is also an CRIMINAL APPEAL NO. 648-DB OF 2000 -7 admitted case that the deceased remained admitted in the Civil Hospital upto February 12, 1997. Thereafter, she was admitted in Sacred Heart Hospital, Maksudan. PW16 Dr. Poonam had stated that the patient had left the Civil Hospital without any medical advice. This witness had sent intimation to the police in that regard (Ex. PW13/A). Smt. Sunita died in the above said hospital on February 23, 1997. Post-mortem was conducted upon the dead body by Dr. Ajay Sahni (PW3), Medical Officer, Civil Hospital, Jalandhar, who found the following injuries on the person of the deceased: “Burns of second and third degree were present on whole of the face, neck, front of chest, Right upper limb, parietal left upper limb, healed burnt area around umblicus. Burns were healed at place and infected at other places. Scalp hairs were spared. Vene- section mark on right lower leg.” As per opinion of this witness, death was caused on account of septicemia due to burns, which was sufficient to cause death in ordinary course of nature. All the burns were ante mortem in nature. There is no force in contention of counsel for the appellant that the dying declaration was not recorded as per rules. It has come on record that before recording statement of the deceased, ASI Swarn Singh (PW13) got opinion from the Doctor regarding her fitness. She was declared fit and only thereafter he recorded her statement Ex. PK. The Investigating Officer did not take a chance. He made a request, whereupon statement of the deceased was again recorded by Shri Surinder Singh Sahni , Judicial Magistrate Ist Class, (PW12). Before recording the statement, this witness CRIMINAL APPEAL NO. 648-DB OF 2000 -8 also got opinion, regarding fitness of the deceased. It has also come in the deposition of Dr. Arpna Seth (PW4) that she remained present through out, when statement of the deceased was recorded. Despite lengthy cross- examination of the above said witnesses, the defence has failed to shatter their testimony. Further contention of counsel for the petitioner that despite being literate, the deceased had not signed her statement, which makes the statement suspicious, is also liable to be rejected. Shri Sahni has categorically stated that he had not asked the deceased regarding her educational qualification. To the same effect is the statement made by Swarn Singh (PW13). Before this Court, nothing has been brought on record to show that the deceased was a literate lady. Otherwise also, once the defence has failed to shatter deposition made by the above witness and the doctor before whom statement was recorded, whether the deceased had signed or thumb-marked the statement, it makes no difference. By placing reliance upon the statements made by father, brother and a relation of the deceased (PW2, PW10 and PW11), the trial Court has come to a conclusion that the appellant – accused has committed an offence punishable under Section 498-A IPC. The marriage had taken place five years earlier to the date of occurrence. Two children were born out of the wed-lock. Above said witnesses have specifically stated that from the very beginning, the appellant – accused had been beating and harassing the deceased to bring money from her parents. In view of evidence, as mentioned above, it can safely be said that death was the result of criminal act, committed by the appellant, in causing burn injuries to the deceased. The trial Court, by noting the CRIMINAL APPEAL NO. 648-DB OF 2000 -9 evidence as mentioned above, held that no offence under Section 304-B IPC is made out and found the appellant – accused guilty of commission of an offence under Section 302 IPC, besides an offence punishable under Section 498-A IPC. Now it is to be seen as to whether act of the appellant – accused would fall under the provisions of Section 302 IPC or Section 304 IPC, as propagated by counsel for the appellant – accused. It is an admitted fact that the marriage had taken place five years earlier to the date of occurrence. Two children were born out of the wed-lock. Appellant – accused is a Law Graduate. His practice failed and he had started a business to sell house-hold goods. As per statement made by the deceased, after marriage the appellant – accused started mal-treating her and she was beaten up many a times. Complaints were made against the appellant – accused in that regard. However, perusal of record indicates that no such evidence was brought on record to prove previous bad conduct of the appellant. The deceased has further stated that the appellant – accused, at the relevant time, was under the influence of liquor. She has also mentioned that he created a scene for serving him cold food. She further stated that both the children were also beaten up by the appellant. The appellant also asked the deceased in whose favour she had cast her vote at the time of election. She has further stated that she went out to call her father-in-law. When she came back, she found the house locked. Her father-in-law, after getting keys from the appellant – accused, opened the lock and she found the children inside in a room. The appellant accused again started abusing her and picked up a bottle of kerosene oil, which was lying there, threw it upon her and put her on fire. CRIMINAL APPEAL NO. 648-DB OF 2000 -10 The facts, mentioned above, clearly show that it appears to be a sudden quarrel between the husband and the wife. The husband was under the influence of liquor. There appears to be some dispute regarding serving cold food by the deceased to the appellant- accused and also on account of casting vote in the election. Facts further indicate that the appellant – accused did not bring kerosene oil from outside. Rather he picked up a bottle, which was lying inside the house, threw it upon the deceased and put her to fire. He did not pour kerosene oil upon the deceased. This fact is evident from the medical evidence on record. The deceased had received burn injuries (35%) on face, chest, lower limbs etc. The very fact that immediately the appellant – accused made an attempt to extinguish the fire shows that he had no intention to kill the deceased. After his arrest, the appellant – accused was medico legally examined by Dr. Gurpal Singh (PW7), who observed as under: “Both hands were burnt anteriorly as well as posteriorly. Corbuncles present. Burn approximately 10 percent.” The fact that the appellant – accused tried to extinguish the fire was even admitted by the deceased in her statement Ex. PK. The prosecution has not brought into the witness-box father-in-law of the deceased, who had seen the entire incident. The death had occurred after about 15 days of the occurrence. From the facts, mentioned above, it can safely be said that the criminal act on the part of the appellant - accused was due to a sudden quarrel between husband and the wife. He was under the influence of liquor. Without any preparation, may be under heat of passion, he picked CRIMINAL APPEAL NO. 648-DB OF 2000 -11 up a bottle of kerosene oil lying inside the house, threw it upon the deceased, put her on fire, he immediately realised his folly and made an attempt to extinguish the fire, which resulted into causing the burn injuries upon his both hands. In view of above, this Court is of the opinion that criminal act of the appellant would fall within the purview of Section 304 Part 1 IPC. Accordingly, the appeal is partly allowed, conviction and sentence of the appellant – accused under Section 302 IPC are set aside. He is convicted for commission of an offence punishable under Section 304, Part 1 IPC and is sentenced to undergo rigorous imprisonment for a period of ten years and pay a fine of Rs. 5,000/-, in default of payment of fine, he shall further undergo rigorous imprisonment for six months. Conviction and sentence of the appellant under Section 498-A IPC are, however, maintained. (JASBIR SINGH) JUDGE ( DAYA CHAUDHARY) JUDGE October 15, 2009. DKC