Punjab And Haryana High Court · 2010

Judgment

1. Appellant Anil Kumar was tried by the Court of Sessions Judge, Ludhiana, for the offence under Section 302 IPC, for committing the murder of his wife Radha Rani. The trial court, vide its judgment and order dated 27.3.2001, convicted and sentenced the appellant to undergo rigorous imprisonment for life and to pay a fine of ` 2,000/- or in default to undergo further rigorous imprisonment for a period of three months.

2. In brief, the prosecution case, which is based upon the statement (Ex.PL) of Radha Rani (deceased), recorded by Sohan Singh ASI (PW.10) on 4.6.1997 at 12.45 PM, in Dayanand Medical College and Hospital, Ludhiana, is that Radha Rani was married to appellant Anil Crl. A. No. 546-DB of 2001 -2- Kumar, in December, 1996, who was running the by-cycle repair shop at Gill Road, Ludhiana. He along with his parents and his elder brother Bablu was residing in his ancestral house in Mohalla Nanaksar. About two months prior to the occurrence in this case, Bablu caught Radha Rani with bad intention to molest her. Due to that incident, a quarrel had taken place in the house. Thereafter, the appellant and Radha Rani started living in Mohalla Fateh Singh Nagar on rent in the house of the Mausi (mother's sister) of Radha Rani. The appellant was addicted to drinking. After consuming liquor, he used to beat his wife Radha Rani on the pretext that she had picked up row and dispute in their house. On 3.6.1997 at about 9.30 PM, after drinking, appellant Anil Kumar gave severe beatings to Radha Rani. At that time, Anil Kumar son of Jot Ram (PW.4), son of Mausi (mother's sister) of Radha Rani, with the help of the persons of Mohalla, rescued her. Thereafter, the appellant left the house. In the night, at about 11 PM, he again came to the house and started beating Radha Rani and threw her on a chair, due to which she sustained injury in her abdomen. At that time, she was pregnant. Thereafter, appellant poured kerosene oil upon her and set her

on fire. At that point of time, Anil Kumar (PW.4) and Shankar Verma (PW.5), who was residing on rent in the adjoining room also came there. On raising hue and cry by Radha Rani, other persons of the Mohalla also came there. They put off the fire with the help of Anil Kumar (PW.4). During that time, appellant slipped away. Thereafter, Anil Kumar (PW.4) with the help of other persons got Radha Rani admitted in Dayanand Medical College & Crl. A. No. 546-DB of 2001 -3- Hospital, Ludhiana on 4.6.1997 at 1.57 AM (night). The information was sent to the police at 5.30 AM. After obtaining the opinion (Ex.PK/1) of the Doctor at 11.50 AM, regarding the fitness of Radha Rani, Sohan Singh ASI recorded her statement (Ex.PL) at 12.45 PM, on the basis of which the formal FIR (Ex.PL/2) under Section 307 IPC was registered. Thereafter, on the same day i.e. on 4.6.1997, after obtaining opinion from the doctor regarding the fitness of Radha Rani to make the statement, Shri S.K. Sachdeva, Judicial Magistrate Ist Class, Ludhiana (PW.7-A), recorded her statement (Ex.PQ) at 2.45 PM and vide endorsement (Ex.PM/1), Dr. Charanjiv (PW.8) certified that she remained fit throughout recording of her statement.

3. Thereafter, Sohan Singh ASI along with other police officials visited the spot and vide recovery memo (Ex.PF), mattress (Ex.P1), khes (Ex.P2), tin container (Ex.P3) having smell of kerosene and the match box (Ex.P4) were taken into possession. The mattress (Ex.P1) and the khes (Ex.P2) were found partly burnt.

4. On 7.6.1997 at 12.45 PM, Radha Rani died and the case was then converted into one under Section 302 IPC. In the night of the same day, Inspector Daljit Singh (PW.8-A) went to New DMC, Ludhiana and deputed a Constable to guard the dead body of Radha Rani in the mortuary. On the next day i.e. on 8.6.1997, Inspector Daljit Singh again visited the Hospital and prepared the inquest report (Ex.PD) and sent the dead body for post mortem examination. Crl. A. No. 546-DB of 2001 -4-

5. On 8.6.1997, Dr. R.K. Sharma (PW.2) conducted post mortem examination on the dead body of Radha Rani. On exploration of the uterus, 5 to 6 months fetus was found lying dead within the cavity. The cause of death was opined to be due to shock owing to extensive burns and septicemia. All the injuries on the person of the deceased were found to be ante-mortem in nature and sufficient to cause death in the ordinary course of nature. On 8.6.1997, the appellant was arrested in this case.

6. After completion of investigation, challan was filed against the appellant and he was charge sheeted for the offence under Section 302 IPC, to which he did not plead guilty and claimed trial.

8. In support of its case, the prosecution examined 14 witnesses. PW.1 Dr. Sanjiv Uppal produced the bed head ticket (Ex.PA) of Radha Rani, which shows that she was got admitted in Dayanand Medical College & Hospital, Ludhiana on 4.6.1997 at 1.57 AM (night) in burnt condition.

9. PW.2 Dr. R.K. Sharma, who conducted post mortem examination on the dead body of deceased Radha Rani, proved the Post Mortem Report (Ex.PB) of the deceased.

10. PW.4 Anil Kumar and PW.5 Rama Shankar Verma are the eye witnesses of the occurrence. They have fully supported the case of the prosecution regarding the occurrence, which was witnessed by them.

11. PW.8 Dr. Charanjiv proved the opinions (Ex.PK/1 and Ex.PM/1) given by him at the time of recording of separate statements of Crl. A. No. 546-DB of 2001 -5- Radha Rani by ASI Sohan Singh and Shri S.K. Sachdeva, Judicial Magistrate Ist Class, Ludhiana, regarding her fitness to make statement.

12. PW.5-A HC Gian Singh is the witness to the recovery of mattress (Ex.P1), khes (Ex.P2), tin container (Ex.P3) and the match box (Ex.P4) vide recovery memo Ex.PF.

13. PW.7-A Shri S.K. Sachdeva, SDJM, Malerkotla, the then Judicial Magistrate Ist Class, Ludhiana, proved the dying declaration (Ex.PQ) of deceased Radha Rani, recorded by him.

14. PW.8-A Inspector Daljit Singh and PW.10 ASI Sohan Singh, who conducted the investigation in the case, supported the prosecution case.

15. PW.9 Dr. Sanjiv Kumar Singla proved the report (Ex.PW9/A) sent by him to the police regarding the death of Radha Rani on 7.6.1997 at

12.45 PM.

17. All the remaining witnesses are formal in nature. In his statement under Section 313 Cr.P.C., the appellant denied all the allegations appearing against him in the prosecution evidence. He pleaded innocence and took the defence that at the time of the alleged occurrence, he was away from the house and was in fact doing his duty at Manchanda Cycle Store, Ludhiana, where some persons from his locality came and informed him that his wife had received burn injuries and she was taken to Pahwa Hospital, Ludhiana. When he went there, he came to know that his wife Radha Rani was not admitted there. Thereafter, he rushed to DMC Hospital, Ludhiana and found his wife lying there unattended. He Crl. A. No. 546-DB of 2001 -6- then got her admitted in DMC Hospital, Ludhiana for treatment. He remained with his wife till 6 AM on the next morning. Lateron, the false case was registered against him at the instance of relations of his deceased wife.

18. In defence, the appellant examined two witnesses, namely DW.1 Prince Kumar and DW.2 Gurnam Singh.

19. DW.1 Prince Kumar stated that he was running new cycles shop at Gill Road, Ludhiana. In the year 1997, the appellant, who was working as a mechanic, was used to sit near his shop. His shop remains open from 9 AM to 9 PM. On the day of occurrence at about 8/8.30 PM, the appellant received a message about the burning of his wife, regarding which the appellant told him (DW.1) and left for his house.

20. DW.2 Gurnam Singh claimed that on the day of occurrence at about 8/8.30 PM, he was taking tea on a shop near the house of the appellant. At that time, he came to know that some lady had put herself on fire. Then he learnt that she was wife of the appellant. He went to inform the appellant about the incident. He told him that he should take care of his wife. He reached the shop of the appellant at about 9.15 PM and informed him about the occurrence.

21. The trial court, after considering the evidence led by the prosecution, while placing reliance on two dying declarations (Ex.PL and Ex.PQ), recorded by ASI Sohan Singh (PW.10) and Shri S.K. Sachdeva, the then Judicial Magistrate Ist Class, Ludhiana (PW.7-A), which are duly Crl. A. No. 546-DB of 2001 -7- supported by Anil Kumar (PW.4) and Rama Shankar Verma (PW.5), the eye witnesses, as well as the statement of PW.2 Dr. R.K. Sharma, and while disbelieving the defence version of the appellant, came to the conclusion that the appellant set his wife Radha Rani on fire by pouring kerosene oil on her, who subsequently succumbed to the burn injuries in the Hospital and those burn injuries were caused by the appellant with intention of murder. Accordingly, the trial court has convicted and sentenced the appellant, as indicated above. Hence, this appeal.

22. Learned counsel for the appellant, while referring to some variations in the dying declarations (Ex.PL and Ex.PQ) made by deceased Radha Rani before ASI Sohan Singh (PW.10) and Shri S.K. Sachdeva, the then Judicial Magistrate Ist Class, Ludhiana (PW.7-A), argued that the version given by the deceased, on the basis of which the FIR was registered, is not reliable, because the first dying declaration (Ex.PL) was made by the deceased after about 12/13 hours of the occurrence and during that period, she was tutored by her relatives. Learned counsel further argued that the trial court has erred in disbelieving the defence version of the appellant.

23. On the other hand, learned Additional Advocate General, Punjab, while supporting the reasoning recorded by the trial court, submitted that the prosecution has fully established its case against the appellant and he has been rightly convicted and sentenced for the offence under Section 302 IPC.

24. We have considered the submissions made by learned counsel Crl. A. No. 546-DB of 2001 -8- for the parties and have gone through the record of the case.

25. In our opinion, in the present case, the prosecution has fully proved the guilt of the accused beyond reasonable doubt. It has come in evidence that Radha Rani was married to accused Anil Kumar. After the marriage, the couple along with parents and elder brother of the husband were residing in the ancestral house in Mohalla Nanaksar. About two months prior to the occurrence, Bablu (elder brother of the accused) tried to molest the modesty of Radha Rani. Due to that incident, she along with the accused started living in Mohalla Fateh Singh Nagar on rent in the house of her real Mausi. It is the admitted position that the occurrence took place in that house. It has also been established that the accused was addicted to drinking and he used to beat his wife Radha Rani on the pretext that due to her, a dispute had arisen in their house and he is living separately from his parents. It has been further proved that on the day of occurrence, at about

9.30 PM, the accused gave severe beatings to Radha Rani. PW.4 Anil Kumar intervened and rescued her. Thereafter, the accused left the house. Then, at about 11 PM, he again came to the house and started beating Radha Rani. He threw her on a chair and thereafter, poured kerosene oil upon her and set her on fire. At that point of time, PW.4 Anil Kumar and PW.5 Shankar Verma came on the scene and put off the fire. In the meanwhile, the accused slipped away from the scene. Thereafter, PW.4 Anil Kumar got Radha Rani admitted in DMC Hospital, Ludhiana. As per the statement of statement of PW.8 Dr. Charanjiv, Radha Rani was brought to the hospital Crl. A. No. 546-DB of 2001 -9- by Anil Kumar (PW.4) and as per the bed head ticket (Ex.PA) of the patient, she was admitted in DMC Hospital, Ludhiana, on 4.6.1997 at 1.57 AM, where on 7.6.1997 at 12.45 PM, she died due to burn injuries.

26. The aforesaid prosecution version has been established by the two dying declarations, i.e. Ex.PL and Ex.PQ, made by the deceased to ASI Sohan Singh (PW.10) and Shri S.K. Sachdeva, Judicial Magistrate (PW.7- A), respectively, as well as the testimonies of two eye witnesses, namely PW.4 Anil Kumar and PW.5 Rama Shankar Verma. The prosecution has fully established that both the dying declarations, made by the deceased, were truly and correctly recorded, without any addition or alteration, after obtaining the medical opinion of the Doctor about her fitness to make the statement. It has also been proved that at that time, no relative of the deceased was present. The first dying declaration (Ex.PL) of Radha Rani was recorded by ASI Sohan Singh (PW.10) on 4.6.1997 at 12.45 PM, in the presence of Dr. Charanjiv (PW.8), after seeking his opinion about her fitness to make the statement. PW.8 Dr. Charanjiv, in his statement, has categorically stated that on the application (Ex.PK), moved by ASI Sohan Singh, he gave opinion (Ex.PK/1) about the fitness of Radha Rani to make the statement and thereafter, in his presence, ASI Sohan Singh recorded her statement. He has further stated that Radha Rani remained fit to make statement throughout the period, when she made the statement. The second dying declaration (Ex.PQ) was recorded by Shri S.K. Sachdeva, the then Judicial Magistrate Ist Class, Ludhiana (PW.7-A) on the same day at 2.45 Crl. A. No. 546-DB of 2001 -10- PM. He has categorically stated in the court that the said dying declaration made by Radha Rani was correctly recorded by him without any addition or omission. After recording her statement, it was read over to her and thereafter, she put the impression of her left big toe on her statement (Ex.PQ). He further stated that he had recorded the said statement on the request of the police, after seeking opinion of the Doctor, who had remained present during the recording of the statement and had certified this fact vide endorsement Ex.PM/1. In our opinion, the prosecution has fully proved the aforesaid two statements, made by the deceased in a fit state of mind, without there being any pressure or influence upon her.

27. In addition to the aforesaid two dying declarations, the prosecution version has been corroborated by the testimonies of two eye witnesses, namely PW.4 Anil Kumar and PW.5 Rama Shankar Verma. PW.4 Anil Kumar is the son of the real Mausi of the deceased. He was residing in the same house, where the deceased was residing in a room on rent. PW.5 Rama Shankar Verma is tenant in the said house. Therefore, presence of both these witnesses in the said house at the time of the alleged occurrence, which had taken in two parts, first at about 9.30 PM and the second at about 11 PM, during the night night, is most natural. Both the witnesses have categorically stated that on the day of occurrence at 9.30 PM, accused and Radha Rani were quarreling with each other and accused was beating Radha Rani. They intervened and thereafter, the accused left the house. Again at 11/11.30 PM, on hearing the noise, they went to the Crl. A. No. 546-DB of 2001 -11- house of the accused. At that time, the accused was holding a can of kerosene oil. He poured kerosene oil on Radha Rani and set her on fire. Thereafter, the accused ran away from the spot. Then, both these witnesses with the help of other persons, who also came on the scene, extinguished the fire and took Radha Rani to DMC Hospital, Ludhiana, where she was admitted.

28. The statements of both the aforesaid eye witnesses are reliable and trust-worthy. They have been cross-examined at length, but nothing adverse could be extracted from their statements. Rather, in the cross- examination, no suggestion was put to them that at the time of the occurrence, the accused was not present in the house and at that time, he was working at his shop. Even no suggestion was put that the accused did not beat the deceased in drunken condition. Therefore, testimonies of both these witnesses have fully corroborated the version given by the deceased in her dying declarations (Ex.PL and Ex.PQ).

29. Learned counsel for the appellant, while referring to some variations in the dying declarations (Ex.PL and Ex.PQ) made by deceased Radha Rani before ASI Sohan Singh (PW.10) and Shri S.K. Sachdeva, the then Judicial Magistrate Ist Class, Ludhiana (PW.7-A), has argued that the version given by the deceased in her dying declarations is not reliable and trust-worthy. On a careful examination of both these dying declarations, we do not find any variation or contradiction in these statements. Though, the wording of these dying declarations is slightly different, but the substance Crl. A. No. 546-DB of 2001 -12- of both the dying declarations is the same. In both these statements, it has been categorically stated by the deceased that her husband Anil Kumar (accused) gave beatings to her, put kerosene oil upon her and set her on fire. Merely because, in a different wording, the same thing has been said, it cannot be taken that there are variances or deviations, which make the dying declarations unreliable. In our opinion, when the deceased made multiple dying declarations and there are some deviations in narration of facts, that will not be fatal, if the dying declarations are consistent in material particulars. In the present case, both the dying declarations were recorded in the presence of the Doctor after obtaining his opinion regarding fitness of the patient to make statement. One dying declaration has been recorded by the Judicial Magistrate. We are satisfied that both the dying declarations are true and voluntary deposition of the deceased. These have been correctly recorded without any addition and alteration or without any pressure from any one and are free from tutoring, prompting or imagination. A dying declaration is admissible in evidence even without any corroboration, if the court is satisfied that such dying declaration is true and voluntary deposition of the deceased and the same was correctly recorded without any addition or alteration and influence. In the instant case, the dying declarations made by the deceased have been fully corroborated by the statements of two eye witnesses.

30. In addition to the above, the defence taken by the accused that his wife Radha Rani has committed suicide and at that time, he was not Crl. A. No. 546-DB of 2001 -13- present in the house, but he was present in his shop, has not been established. The statements of both the witnesses, examined by the accused in his defence, are unreliable and untrustworthy. According to DW.1 Prince Kumar, on the day of occurrence, at about 8/8.30 PM, accused was working at his shop and at that time, he received a message about the burning of his wife and thereupon, he went to his house. The occurrence of burning in this case had not taken place at 8 or 8.30 PM. As per the dying declarations of the deceased and statements of both the eye witnesses, the occurrence had taken place at about 11 PM and immediately thereafter, the injured was shifted to Hospital and was got admitted in DMC Hospital, Ludhiana at

1.57 AM. Similarly, DW.2 Gurnam Singh stated that at about 8 or 8.30 PM, he was taking the tea at the spot, when he heard that some woman had put herself on fire, regarding which lateron, he came to know that she was wife of accused Anil Kumar and thereafter, he informed the accused. According to this witness, he reached the shop of the accused at 9.15 PM. Statements of both the defence witnesses are contradictory. DW.1 states that at about 8/8.30 PM, the accused received information regarding the burning of his wife, whereas DW.2 states that he reached the shop of accused at 9.15 PM and informed him about the incident. The shop of the accused was at a distance of about 3 Kms., from the place of occurrence. Presence of the accused in his house at the time of occurrence has been proved by both the eye witnesses, to whom no suggestion was put by the defence counsel that at the time of the occurrence, the accused was not present in his house. Crl. A. No. 546-DB of 2001 -14- Thus, in our opinion, statements of both the defence witnesses do not inspire any confidence.

31. In view of the above, we are of the opinion that the prosecution has fully proved the guilt of the accused beyond reasonable doubt and the trial court, on the basis of the evidence led by the prosecution, was fully justified to convict the appellant for committing the murder of his wife Radha Rani.

32. Consequently, the impugned judgment of conviction as well as the order of sentence is upheld and the appeal is, accordingly, dismissed.

33. Since appellant Anil Kumar is on bail, therefore, his bail bonds stand cancelled and he is directed to surrender before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against him in accordance with law. ( SATISH KUMAR MITTAL ) JUDGE November 15, 2010 ( JORA SINGH ) JUDGE