(F.M. Ibrahim Kalifulla and Uday U. Lalit, JJ.)
Suresh Kumar and Others ___________________________ Appellant(s)
v.
State of Haryana ___________________________________ Respondent
Criminal Appeals Nos. 1742-43 of 2008, decided on October 27, 2015
The Judgement of the court was delivered by
Judgment
1. There were originally three appellants in these two appeals. First and second appellants are the sons of the third appellant who is no more. The first appellant is the brother of the second appellant. The second appellant is the husband of the deceased. The third appellant is the mother-in-law of the deceased. Inasmuch as the third appellant is no more who is stated to have expired on 6-10-2014 and a death certificate dated 11-10-2014 has been filed in proof of her death, the appeal insofar as the third appellant stands abated. We are, therefore, confining ourselves to the appeals relating to Appellants 1 and 2.
2. The deceased one, Seema, got married to the second appellant on 11-9-1991, prior to her death which occurred on 14-5-1996 at 5.25 a.m. Earlier, there was a complaint at her instance on 20-11-1995 to the Superintendent of Police for dowry harassment as against the original appellants. It is stated that there was a compromise between the parties and according to PW 3 ASI, a status report dated 2-2-1996 was filed as per which the deceased and the second appellant were allowed to live separately in a city called Hissar instead of Village Kheri Barki, where they were earlier living. There was also one affidavit sworn to by the father of Appellants 1 and 2 dated 28-1-1996 which was also referred to in support of the said compromise. Thereafter, the couple started living in Hissar on and after 31-1-1996.
3. On the fateful day i.e. 13-5-1996, when Appellants 1 and 3 visited the place of abode of the deceased and the second appellant at 3/3.30 p.m., as per the dying declaration of the deceased made under Exts. PE and PL-4 in spite of the deceased offering lemon juice to all of them, while rejecting her offer, the second appellant mercilessly beat her, and the third appellant and the first appellant by uttering harsh words towards her as to her failure to bring enough dowry, further beatings were carried out and at the end the mother-in-law, namely, the third appellant poured kerosene oil upon her and also threw a lighted matchstick.
4. By virtue of the fire inflicted on her, the deceased is stated to have suffered 100 per cent burn injuries and that the second appellant who attempted to save her by pouring water on her also suffered 25 per cent burn injuries. In the dying declaration, she also mentioned that in the course of the said occurrence injuries were inflicted upon her by both the appellants. Immediately after she was shifted to the hospital, she made a statement to PW 9 ASI, at 5.20 p.m. under Ext. PE with the certificate of the doctor, PW 1. Subsequently at 7.17 p.m. she made another declaration before the Duty Magistrate PW 8 after necessary formalities relating to the dying declaration were carried out. The FIR was registered at 8.20 p.m. for the offences under Sections 498-A, 307 read with Section 34 IPC. Subsequently, after the deceased died at 5.25 p.m. on 14-5-1996, the offence was altered as one under Section 304-B IPC as well. It is in the abovestated factual scenario, the appellants came to be charge-sheeted for offences under Sections 498-A, 304-B read with Section 34 IPC.
5. The trial court after due consideration of the evidence led before it convicted the first and second appellants under Section 498-A IPC and imposed a sentence of three years while the third appellant was convicted for the offence under Section 304-B who was sentenced with life imprisonment. By the impugned judgment1, the High Court while upholding the judgment of the trial court, however, modified the conviction even as against Appellants 1 and 2 under Section 304-B IPC and enhanced the sentence from 3 years to 7 years.
6. We heard Mr. D.P. Singh, learned counsel for the appellants and Ms. Nupur Choudhary, learned counsel for the State.
7. Mr. D.P. Singh in his submissions after taking us through the dying declaration Exts. PE as well as PL-4 and Ext. P-1/2 spoken to by PW 3 as well as the deposition of the doctor who immediately attended on the deceased as well as the second appellant, submitted that there was no legally acceptable material evidence to find Appellants 1 and 2 guilty of any of the offences with which they were charged. The learned counsel, submitted that there was no scope at all for the appellants to develop any ill will after Ext. P-1/2 which discloses that the only grievance of the deceased was to live separately in a city which desire was also duly fulfilled by setting up separate abode for the deceased along with A-2 in the city of Hissar and, therefore, there was no ground made out for the appellants to have killed the deceased by pouring kerosene on her. The learned counsel, therefore, contended that the stand of the appellant that by her own ill feelings which she developed on her own she committed suicide for which the appellants cannot in any way be held responsible.
8. As against the above submissions, Ms. Nupur Choudhary, learned counsel for the State would contend that the dying declaration having been proved in the manner known to law and thereby no deficiency in the manner in which both the dying declarations came into existence, due weight should be given to the statement contained therein in which event the complicity of the appellants in the killing of the deceased cannot be doubted. The learned counsel, therefore, submitted that the marriage having taken place on 11-9-1991 and the death having occurred on 14-5-1996 within a period of 7 years, the burden was upon the appellants to have shown beyond any reasonable doubt that they were not in any way responsible for the killing of the deceased which they failed to discharge and consequently the trial court as well as the High Court were justified in the convicting imposed on them.
9. The learned counsel contended that Ext. PL-4 dying declaration made by the deceased before the Duty Magistrate would give a graphic description about the manner in which the occurrence took place, which clearly sets out the role played by each of the appellants and that they were appropriately convicted by the High Court for the offences under Section 304-B IPC as well.
10. Having heard the respective counsel and having bestowed our serious consideration to the various submissions, having perused the material placed before us and, in particular, Exts. PE and PL-4 read along with evidence of PW 1, the doctor we are also convinced that the conviction of the appellants for the killing of the deceased at the behest of the third appellant cannot be found fault with. When we refer to Ext. PL-4 the dying declaration, made before PW 8, the Duty Magistrate, we find that even while referring to the direct role played by the deceased third appellant who is stated to have poured kerosene on the deceased and also lighted a matchstick and threw it on her, it is also stated therein that the second appellant came forward to save her and also poured water upon her. She also confirmed that she was taken to the hospital by A-2 as well as A-3 only upon the asking of the neighbours who were all present at the place of the occurrence. Keeping the said contents in Ext. PL-4, in mind when we look into the evidence of PW 1, the doctor who attended on the deceased as well as the second appellant, we find that the deceased suffered 100% burn injuries and that such injuries were found as per Ext. PA-1 which is the diagram disclosing the area where such burn injuries were found. In the said diagram, it was noted that burn injuries were found all over the body of the deceased. Therefore, going by the said medical evidence, it is hard to believe that the deceased would have poured kerosene on herself in an attempt to commit suicide in which event there would have been no scope for the entire back side of her body to have suffered burn injuries. Therefore, theory of suicide by the deceased as propounded on behalf of the appellants is totally ruled out.
11. Inasmuch as the dying declaration made before the Duty Magistrate, PW 8, is free from any defect in regard to the legal formalities is recording of the same, we will have to give due weight to the contents found in the said dying declaration in which event, the category statement made by the deceased that after the initial bickerings, the mother-in-law is stated to have beat her and ultimately, poured kerosene upon her and thereafter threw a lighted matchstick on her, has to be believed without any scope for dissenting. Therefore, the killing of the deceased by pouring kerosene on her by the deceased third appellant is fully established and the presence of A-2 in the place of occurrence and also having inflicted injuries as stated by the deceased in Ext. PL-4 also shows that to that extent the second appellant has participated in the crime and consequently, the offence under Section 498-A IPC as against the second appellant was also duly made out.
12. Insofar as the first appellant is concerned, here again, we find that in Ext. PL-4, there is a specific assertion as regards the cruelty meted out to her by inflicting blows on her by A-1 as has been specifically made. In such circumstances, when the presence of A-1 along with A-2 and A-3 was not in dispute, in the light of such specific assertion made by the deceased as noted in Ext. PL-4, we do not find any scope to leave out A-1 of his conviction as inflicted upon him by the trial court under Section 498-A IPC.
13. Further, having regard to the specific statement contained in Ext. PL-4, wherein it is also referred that A-2 came for her rescue when he found her burning by pouring water upon her and also took her to the hospital, when appreciated, we will have to state that having regard to such conduct, read along with the evidence of PW 1, that in that process A-2 also suffered burn injuries to the extent of 25 per cent on the forearm, right forearm, left elbow and right side of his face as well as his abdomen were all factors which would go to show that there was no intention on the part of A-2 to have any mind set to eliminate the deceased along with his mother A-3.
14. In such circumstances, we hold that the conviction inflicted upon him by the trial court can be restored while the enhancement from Sections 498-A to 304-B IPC by the High Court cannot be sustained. Having regard to our above conclusions, while confirming the conviction of the appellants for the offences under Section 498-A IPC and modifying the judgment of the High Court to the said extent, we restore the conviction and sentence imposed upon Appellants 1 and 2 by the trial court for the said offences along with the sentence of three years imposed on them.
15. The appeals stand partly allowed to the above extent modifying the conviction of A-1 and A-2 under Section 498-A IPC and the sentence will be only three years as against seven years as imposed by the High Court.
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1 Suresh Kumar v. State of Haryana, 2007 SCC OnLine P&H 979 : (2008) 2 RCR (Cri) 2
