Prem Kumar Gulati vs State Of Haryana & Anr

2. The facts leading to the prosecution story are that on 16.1.1995, Rajni-deceased was married with Mahender Singh alias Mahender Gulati and out of this wedlock, three children were born. Both the appellants, namely Mahender Gulati and Prem Kumar Gulati (brother in-law (jeth) of deceased) are the brothers. The prosecution case is that on receipt of V.T. message on 10.12.2003, ASI Ram Singh rushed to PGIMS, Rohtak with regard to admission of Rajni in burnt condition. After obtaining Doctor’s certificate regarding fitness of the victim to give statement, Additional Chief Judicial Magistrate, Rohtak recorded her statement (dying declaration) to the effect that on 9.12.2003, at around 9.30/10.00 P.M. the accused persons being her husband, Jeth and Jethani poured kerosene oil on her and set ablaze. It is also stated in her dying declaration that her husband had illicit relation with his Bhabi Bimla (since deceased), with the result she used to pick up quarrel with him. Her husband gave her beatings under the influence of intoxication. None made attempt to extinguish fire.

3. On the basis of the above dying declaration a case was registered and the investigation agency swung into action. Statements of witnesses were accordingly recorded under Section 161, Cr.P.C. The Investigating Officer investigated the spot and prepared rough site plan with correct marginal notes and took into possession burnt clothes of Rajni, ash of burnt clothes, one kerosene lamp after converting the same into sealed parcel. On the night of 12.12.2003, message was received from PGIMS, Rohtak that Rajini had died as a result of burn injuries. Post mortem report was obtained, site plan was sketched and FSL report was obtained. After completion of investigation, only accused Mahender Singh alias Mahender Gulati was arraigned to stand trial under Sections 302/498A, I.P.C. by Police, whereas Prem Kumar Gulati and Smt. Bimla alias Nirmla were summoned to face trial along with other accused Mahender, as additional accused, by invoking the provisions of Section 319, Cr.P.C.

4. In order to substantiate the charges, the prosecution examined nine witnesses. According to Dr. Ravi Kanta (PW-1), who conducted post mortem examination, burn injuries were approximately 50% and cause of death of Rajni was due to ante mortem burns, which were sufficient to cause death in ordinary course of nature. According to Dr. Naresh Kumar Kardwal (PW-3), who medico-legally examined the deceased, found superficial deep burns all over the body except back, hip, lower leg, left hand and forearm. He stated that possibility of burn injuries in this case by fall of kerosene oil on the head cannot be ruled out. Agyapal (PW-7), father of the deceased, stated that accused person started harassing his daughter three months after marriage for want of dowry although sufficient dowry was given. Ultimately, she was shunted out from the matrimonial abode and her husband filed a divorce petition. Later, the matter was resolved on the apology being tendered and assurance given by the accused persons before the panchayat on 1.12.1996. Ironically she fell prey to recurrence and was turned out from the matrimonial house in the year 1997. His daughter divulged about the illicit relations between her husband and sister-in-law. Again accused persons were apologized before the Panchayat on the assurance given by them. In 2001, a criminal case was filed, which was also compromised with the intervention of panchayat. Against willingness of his daughter, he persuaded and sent her daughter back to the matrimonial house through panchayat. He further highlighted that about one week prior to the occurrence, his daughter informed him telephonically about harassment and requested him to take her to parental house. Thereafter, on 10.12.2003 at around 5.00 A.M. a telephonic message, was received and he along with his wife and son rushed to the hospital, where the victim disclosed that accused Prem and Bimla caught hold of her and her husband Mahender poured kerosene oil and set her on fire. PW8, brother of Rajni, supported the version of his father PW7.

5. Accused denied all the charges and in defence accused Mahender Singh stated that at the time of occurrence he was present on the ground floor and was working at flour mill. His wife and children were on the first floor. After hearing cries of children, he went upstairs on the first floor and saw that his wife was having burn injuries accidentally due to falling of a lamp upon her in the kitchen. Complaint against his brother and bhabhi, who were residing separately, was filed at the instance of her parents. The accused examined deceased’s eight years’ old daughter Kumari Manshu (DW-1), who deposed that she heard cries of her mother in the kitchen. She came out and told that she had caught fire due to falling of burning lamp on her as glass of the lamp got broken after falling upon her. The Child called her father, who was on the ground floor in the flour mill at that time. Her father and neighbours extinguished fire and took her mother to the hospital. Upon this, trial court has opined that the child has been tutored as she was residing with accused persons, namely, Prem and Bimla, after the death of her mother and she had come along with them on the date of examination in the Court. Trial court further observed that broken glasses of the lamp had fallen in the verandah and not in the kitchen.

7. Aggrieved by the decision of the trial court, the accused persons preferred criminal appeal before the High Court of Punjab and Haryana at Chandigarh, which was dismissed by the Division Bench of the High Court upholding the judgment of the trial Court. Hence, the present appeals by special leave by two accused persons.

19. As noticed above, in the dying declaration, the deceased declared that her husband Mahender Singh along with the accused Prem Kumar Gulati and Bimla (deceased) have poured kerosene oil upon her. Except that, nothing has been said in the dying declaration as against the accused Prem Kumar Gulati or his wife- Bimla as to which accused poured kerosene oil upon her and the accused lighted the fire. In the later part of dying declaration, the deceased stated that her husband Mahender Singh used to reside with his Bhabhi. After drinking liquor, she was beaten up by her husband with lathi and shoes. In other words, in her dying declaration she said that her husband Mahender Singh used to beat her after drinking liquor. There is no eye-witness to the occurrence. PW-2, the police officer deposed that he recorded the statement of several persons and collected all the papers including ration card and compromise letter written to the Panchayat etc. He further deposed that during the investigation, the accused Prem Kumar and Bimla were found innocent as they were living separately. Although the trial court and the appellate court convicted both the accused Prem Kumar Gulati and his wife Bimla, but after scrutiny of all the evidence, we are of the view that there are no corroborative evidence to come to the conclusion that these two participated along with the main accused Mahender Singh for the commission of the offence. As noticed above, one of the accused Bimla already expired. We do not find any reason why Prem Kumar also participated in the commission of the offence. Admittedly, neither in the dying declaration nor in the statement of witnesses it has come in light as to what act was done by the accused- Prem Kumar.

20. In our considered opinion, the benefit of doubt should be given to accused-appellant Prem Kumar and his conviction cannot be sustained.

22. We, therefore, dismiss Criminal Appeal No. 1423 of 2009 and uphold the conviction of Mahender Singh.

23. Criminal Appeal No.1422 of 2009 is allowed and the appellant Prem Kumar Gulati is acquitted from charges. He is directed to be released forthwith.