Crl. Appeal No.D-292-DB of 2005 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.D-292-DB of 2005 Date of Decision :17.08.2011 Satpal s/o Parbhu Dayal ... Appellant Versus State of Haryana .... Respondent CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE VIJENDER SINGH MALIK ....... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.B.S. Saroha, Advocate for the appellant. Mr. Saurabh Mohunta, DAG, Haryana, for the respondent-State. -- Vijender Singh Malik, J. Satpal is in appeal before us against the judgment of his conviction dated 22.03.2005 vide which learned Sessions Judge, Hisar held him guilty for an offence punishable under section 302 of the Indian Penal Code and the order of sentence dated 24.03.2005 vide which he has been sentenced to undergo imprisonment for life and to pay a fine of Rs.2000/- for the said offence, with further rigorous imprisonment for a period of three months in default of payment of fine. The case set up against the appellant by Police Station, City Hisar is as under:- Crl. Appeal No.D-292-DB of 2005 --2-- On 07.05.2003 a telephonic message was received at Police Post Mohalla Dogran, Hisar from General Hospital, Hisar about the admission of Veena wife of Satpal, a resident of Mohalla Dogran, Hisar as a burn case. On receipt of this message, Bhim Singh, ASI went to General Hospital, Hisar and obtained the medical ruqa and copy of MLR from Police Post General Hospital, Hisar. Though, it was mentioned therein that the patient was unfit to make statement at 7.25 PM, yet Bhim Singh, ASI made an application seeking opinion of the doctor regarding fitness of Veena to make statement. The doctor, however, declared her unfit to make statement. As there was no eye witness of the occurrence present with the patient, so no proceedings could be initiated regarding this occurrence on that day. On 08.05.2003 Bhim Singh, ASI again visited the hospital. He orally inquired from the doctor about the fitness of Veena to make statement. When the doctor told him that the patient was fit to make statement, he went to learned Chief Judicial Magistrate, Hisar and made an application Ex.PK to him for recording statement of Veena. Learned Chief Judicial Magistrate, Hisar had marked the application to Mr.J.S. Sidhu, learned Judicial Magistrate Ist Class, Hisar, who went to General Hospital, Hisar with Bhim Singh, ASI. He reached the hospital at 6.25 AM and sought the opinion of the doctor on duty regarding fitness of the patient to make statement. On receipt of fitness certificate of the patient, he recorded the statement of Veena in question-answer form. The Crl. Appeal No.D-292-DB of 2005 --3-- substance of her statement made to the Magistrate is as under:- “Her husband had been harassing and beating her for the last 5-7 years. About 3-4 years ago, her husband gave a blow with a saw to the right hand of Veena. The wound had received 19 stitches. On 07.05.2003, he gave her beating and used improper language under the influence of liquor. In the evening, when her husband came, he poured kerosene on her clothes and after setting her on fire, he tried to run away. She also ran after him. The neighbours collected outside the house and had put out the fire by putting blankets and towels on her. On the neighbours insisting, Satpal brought Veena to the hospital.” After recording her statement, the Magistrate again sought the opinion of the doctor, who had opined that she remained fit and conscious during her statement. After obtaining a copy of the statement of Veena, Bhim Singh, ASI made his endorsement thereon and on the same, a case was registered at Police Station, City Hisar for an offence punishable under sections 307 and 498-A of the Indian Penal Code. Special report of the case was sent to the Illaqa Magistrate on the same day. Bhim Singh, ASI then went to the spot. He picked up an empty bottle having smell of kerosene from the spot. He gave it the shape of parcel and sealed it with the seal bearing impression 'BS'. He took the same into possession by way of a recovery memo. He prepared a rough site Crl. Appeal No.D-292-DB of 2005 --4-- plan of the place of occurrence. He recorded the statement of Raj Kumar and made search for the accused but he was not available. On return to the police station, the case property was handed over to the Moharrir Head Constable. Satpal accused was arrested by Bhim Singh, ASI on 09.05.2003. He was got medicolegally examined. Receiving a telephonic message from Police Post, General Hospital, Hisar regarding death of Veena on 11.05.2003, Bhim Singh, ASI went there and recommended addition of section 302 IPC to the case. Special report of the case was again sent to the Illaqa Magistrate and others. He then conducted inquest proceedings and got post- mortem examination conducted on the dead body of Veena. On completion of the investigation, challan against Satpal was prepared and presented in the court. Charge was framed against the appellant for an offence punishable under section 302 IPC, vide order dated 12.09.2003. The appellant pleaded not guilty to the charge and claimed trial. The prosecution has examined eleven witnesses in all at the trial. After the evidence of the prosecution came to a close, the appellant was examined in the terms of section 313 Cr.P.C. The appellant has denied each piece of incriminating evidence brought by the prosecution when put to him in the shape of questions. He has claimed himself to be innocent and to have been falsely implicated in the case. He has further added that his wife was suffering from blood- pressure and on account of bad relations between him and his brother- in-law Raj Kumar and others, his wife made a statement against him Crl. Appeal No.D-292-DB of 2005 --5-- before the Magistrate, falsely implicating him in the case. He did not lead any evidence in his defence. After hearing learned public prosecutor for the State and learned counsel for the defence as well as going through the evidence on record, learned Sessions Judge, Hisar, convicted the appellant for the offence detailed as above vide judgment dated 22.03.2005 and awarded the sentence detailed as above vide order dated 24.03.2005. Feeling aggrieved by the judgment of conviction and the order of sentence passed by learned trial court, the present appeal has been brought by Satpal, appellant. We have heard Mr. B.S. Saroha, learned counsel for the appellant and Mr. Saurabh Mohunta, learned DAG, Haryana, for the respondent-State and have gone through the record of the case with their assistance. Learned counsel for the appellant has submitted that Veena committed suicide on account of bad relations between him and her brother Raj Kumar. According to him, at the instance of Raj Kumar, Veena made a statement to the Magistrate falsely implicating him. He has further submitted that Raj Kumar, PW-8 is the son of the appellant, who was also tutored by Raj Kumar, his maternal uncle. Learned counsel for the appellant has further submitted that the appellant had been medicolegally examined by Dr. R.J. Bishnoi, MO GH, Hisar, PW-2, on 09.05.2003 and he was found to have 5% burn injuries on both of his hands. According to him, these Crl. Appeal No.D-292-DB of 2005 --6-- burn injuries were suffered by him while putting out fire of Veena. He has submitted that the appellant had made an attempt to put out fire of Veena and he cannot be believed to have set her on fire. He has moreover submitted that even if the appellant is believed to have set Veena on fire, he cannot be convicted for the offence punishable under section 302 IPC because he cannot be held to have acted with the intention of killing her. Learned DAG, Haryana has submitted, on the other hand, that besides the statement of Veena, recorded by Mr. J.S. Sidhu, learned Judicial Magistrate Ist Class, Hisar Ex.PK/4, there is a statement of the son of the appellant, which clearly spells out the part played by him in the occurrence. According to him, the plea of the defence that Raj Kumar son of the appellant was tutored by his maternal uncle, cannot be believed. He has, therefore, submitted that learned trial court was fully justified in placing reliance on the aforesaid evidence and holding the appellant guilty. He has further submitted that there is nothing on the record justifying interference with the judgment of conviction and order of sentence passed by learned trial court. The occurrence took place on 07.05.2003. On that day, Veena was declared unfit to make statement. Bhim Singh, ASI, on 08.05.2003 found the patient as fit to make statement. He approached learned Chief Judicial Magistrate, Hisar with a request to record the statement of Veena. Learned Chief Judicial Magistrate, Hisar had directed Mr. J.S. Sidhu, learned Judicial Magistrate Ist Class, Hisar to Crl. Appeal No.D-292-DB of 2005 --7-- do the job, who before recording the statement of Veena, had got the opinion of the doctor about her fitness. He did not fail in obtaining the opinion of the doctor, even after concluding her statement, regarding fitness of Veena to make statement during the period of recording of her statement. The only objection that could have been there to the statement, Ex.PK/4, is that Dr. Bhup Singh, who gave opinion regarding her fitness during her statement, had not been her treating doctor. The question that would now arise for answer is as to whether the dying declaration can be discarded for this reason alone. There is no denial that Dr. Bhup Singh, PW-10 is a doctor. He was on duty at the time of recording the statement of Veena and he was competent enough to find out the fitness or otherwise of Veena to make a statement. So his opinion in this regard cannot be held doubtful. Statement of Veena Ex.PK/4 has been recorded in question-answer form. Even the appellant in his statement recorded under section 313 Cr.P.C. has stated that under the pressure of his brother-in-law Raj Kumar and others, his wife made a statement against him before the Magistrate. Here the appellant admits that his wife had made a statement before the Magistrate. He also admits that she was in her senses and her mind was working because she could take decisions about making a statement on the advice or pressure of someone. Thus, her fitness to make statement at the relevant time cannot be held doubtful. Crl. Appeal No.D-292-DB of 2005 --8-- Raj Kumar, brother of Veena, has appeared as PW-9. He is the person with whom the appellant claims to have bad relations. According to him, this person played spoil sport in connection with the registration of this case against the appellant. The statement of Raj Kumar, PW-9 has to be read to find out if foundation for any such plea had been laid in his cross-examination. It is just suggested to Raj Kumar, PW-9 on behalf of the defence that he had taken a loan of Rs.50,000/- from the accused and on that account they used to remain quarrels between him and his sister Veena, which culminated into Veena committing suicide. Nothing besides it has come in the cross- examination of Raj Kumar, PW-9. If the matter of loan of Rs.50,000/- was there to spoil the relations between Raj Kumar, PW-9 and his sister Veena and this was the reason for Veena to commit suicide, she would be the last person to implicate her husband at the instance of that brother. Moreover, the appellant forgot about this story of Rs.50,000/- while being examined under section 313 Cr.P.C. In the statement, he has claimed the bad relations to be between him and his brother-in-law Raj Kumar and not between Veena and her brother Raj Kumar. Raj Kumar, PW-8 is the son of the deceased. He has made a very clear statement about the occurrence. He has also stated about his father ill-treating his mother. His statement is there about his father pouring kerosene on his mother on 07.05.2003 and setting her on fire. Nothing except routine facts has come in the cross- examination of the witness. The statement of the young son of the Crl. Appeal No.D-292-DB of 2005 --9-- appellant as it is there on the record, cannot be taken out of the consideration for any reason. This statement is thoroughly reliable and taken with the statement of the deceased, is sufficient to hold the appellant guilty. On account of change of mind, the attempts of the appellant to put out fire would not show that he did not intend to kill his wife when he set her afire. This is so laid down by the Hon'ble Supreme Court of India in Bandarupalli Venkateswarlu v. State of Andhra Pradesh (1975) 3 Supreme Court Cases 492. Same is the ratio of the decision of this Court in Ashok Kumar v. State of Haryana 1997(3) RCR (Criminal) 32. In view of the aforesaid discussion, we find no ground to interfere with the finding of guilt recorded by learned trial court against the appellant. Therefore, upholding the judgment of conviction and order of sentence passed by learned trial court against Satpal, we dismiss the appeal. ( HEMANT GUPTA) (VIJENDER SINGH MALIK) JUDGE JUDGE 17.08.2011 dinesh