Prem Devi vs State
2017 Latest Caselaw 2004 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI
+   CRL.A. No.675/2001
                                         Date of Decision : April 25th, 2017

    PREM DEVI                                              ..... Appellant
                              Through:   Mr.Yogesh Saini, Advocate.

                         versus

    STATE                                                    ..... Respondent
                              Through:   Mr. Sundershan Joon, Additional
                                         Public Prosecutor for the State
                                         with Sub-Inspector Ramesh, Police
                                         Station Sultanpuri, Delhi.


    CORAM:
    HON'BLE MR. JUSTICE P.S.TEJI

                                    JUDGMENT

P.S.TEJI, J

1. Aggrieved by the judgment of conviction dated 27.02.2001

convicting the appellant-Prem Devi finding her guilty under

Sections 304 Part-I IPC and order on sentence dated 28.02.2001

vide which the appellant was sentenced to undergo eight years

rigorous imprisonment for the offence under Section 304 Part-I

IPC with fine of Rs.1000/-, in default of payment of fine to further

undergo simple imprisonment for one month, the present appeal

has been preferred.

2. The factual matrix emerging from the record is that the

appellant's husband was a habitual drinker and the same was the

main reason behind many fights, on a daily basis behind him and

the appellant. The appellant Prem Devi, allegedly, had an

altercation on the night of 24.03.1995 at about 11pm when the

neighbours had also intervened and tried to pacify the appellant

and her husband. Further that night, on 25.03.1995 at around

2.30am the appellant allegedly poured kerosene oil on her husband

who was asleep in his jhuggi and set fire by lighting. The police

was subsequently informed about the incident, and acting on the

same ASI Kishan Pal along with a constable reached the jhuggi of

Bharat Bhushan and learnt that the victim had been moved to

Hindu Rao Hospital from where he was referred to L.N.J.P

Hospital by the doctors. The doctors at L.N.J.P Hospital found the

victim unfit for statement. The ASI subsequently reached at the

place of incident again and inquired about the alleged incident

from the eye witnesses.

3. On the basis of statement made by the complainant, Bharat

Bhushan, on a subsequent date, FIR of the instant case was

registered. After completion of investigation, charge sheet was

filed in the Court.

4. Charge under Sections 302 IPC was framed against the

appellant to which she pleaded not guilty. The prosecution had

examined as many as 16 witnesses namely PW1 Ct.Usha Rani,

PW2 Mangal Singh, PW3 Anand Kumar, PW4 Ct.Surjit Kumar,

PW5 HC Somna, PW6 HC Surinder Kumar, PW7 Ram Bharose,

PW8 Narinder Kumar, PW9 Naresh Kumar, PW10 Dr.R.P. Mittal,

PW11 Mohar Singh, PW12 Atiq Khan, PW13 Dr.B.N. Acharya,

PW14 Ratan Singh, PW15 ASI Kishan Pal and PW16 SI Suman

Bala.

5. The statement of the accused/appellant was recorded under

Section 313 of the Cr.P.C. Accused examined one witness in her

defence i.e. DW1 Kamal.

6. The appellant was held guilty by the learned Additional

Sessions Judge vide judgment of conviction dated 27.02.2001 and

passed the order on sentence on 28.02.2001.

7. The appellant has assailed the impugned judgment of

conviction on the ground that the deceased died after 40 days of

incident due to cardio respiratory failure and not as a result of

burning. There is no eye witness to the incident. There is no

evidence to link the appellant with the offence. One of the children

of the deceased was produced as a defence witness who stated that

at the time of incident, the appellant was sleeping outside the

jhuggi along with her children. The door of the jhuggi was closed

from outside, therefore there was no occasion for the appellant to

commit the offence alleged against her.

8. Per contra, arguments advanced by learned Additional

Public Prosecutor for the State are that the appellant has been

rightly held guilty under Section 304 Part-I IPC by the trial court.

The neighbours of the appellant and deceased have supported the

case of prosecution and as per their testimony; deceased informed

them that he was burnt by his wife. There is sufficient evidence

against the appellant to hold her guilty for the offence of causing

culpable homicide not amounting to murder of the deceased.

9. Arguments advanced by the counsel for the appellant as well

as learned APP for the State were heard.

10. It is apparent from the testimony of the prosecution

witnesses, particularly PW2 Mangal Singh that on the intervening

night of 24/25th March, 1995, Randhir Singh and Mohar Singh

came to his jhuggi and woke him up, subsequent to which all of

them went to the jhuggi where the deceased resided, and found him

in a burnt condition. The deceased while crying allegedly told PW2

that his wife, accused Prem Devi had burnt him. Thereafter, this

witness along with Anand Kumar took the deceased to HR hospital

and got him admitted there.

11. PW7 has stated that he reached the jhuggi of the deceased and

found him in a burnt condition, crying and stating that his wife had

burnt him. Thereafter, he along with Mohar Singh informed the

police of the alleged incident and took the deceased to the hospital.

This witness has specifically stated in his testimony that he did not

witness the incident of burning.

12. PW3 Anand Kumar and PW11 Mohar Singh have also made

similar statements as made by PW2 and PW7. They have stated

that when they went to the spot, they found the deceased in a burnt

condition and the deceased was removed to the hospital.

13. From the testimonies of above prosecution witnesses, it is

clear that they both were residing in the vicinity of the area of the

deceased's jhuggi and reached the spot upon being woken up by

neighbours. Neither of them is an eye-witness thereby they did not

see the incident taking place but only reached the spot after being

called out for.

14. The consistent defence taken by the appellant was that at the

time of burning of her deceased husband, she was sleeping outside

her jhuggi along with her children. The plea taken by the appellant

is that she had no role to play in the burning of her husband, rather

it was either the accidental burning or self immolation of the

deceased. It is also her plea that there is no eye witness to the

burning of her deceased husband. It was also submitted that the

real cause of death of her husband was not the burning inasmuch as

firstly he was admitted in hospital, discharged from the hospital

after getting treatment and ultimately died at his home due to

improper care as at that time she was in jail.

15. To establish her defence, the appellant had examined her son

DW1 Kamal as defence witness. DW1 in his testimony has clearly

stated that on the fateful night of 24/25th March, 1995 his mother as

well as his two sisters were all sleeping outside the house along

with this witness. This witness stated that on hearing a noise, he

woke up to find his mother extinguishing the fire which had caught

his father. Thereafter, a few neighbours and police reached the spot

and the police interrogated this witness.

16. From the testimonies of the relevant witnesses and evidence

placed on record it is clear that there are no eye witnesses to the

alleged incident of the night of 24/25th March, 1995. DW1 has

stated in his testimony that the appellant was sleeping along with

him and his sisters outside of the jhuggi and upon waking up found

his mother/appellant trying to put out the fire caught on his father.

17. From the testimony of PW13 Dr.B.N. Acharya, it is found

that the cause of death was cardio respiratory failure consequent to

septicaemia resulting from infected burn. PW13 had stated that he

found the burn injuries to be old and infected which led to the

death of the deceased. Thus it is apparent that the deceased did not

die immediately on the day of burning and was certainly on his

way to recovery at his home and not at the hospital. Further, it is

also evident from the facts of the case that the appellant was

already in judicial custody when the deceased succumbed to his

injuries and this was due to his unhealed injuries developing an

infection. The deceased while trying to recover at his home, did not

tend to his injuries in the right manner owing to the lack of

necessary and needed medical attention and care for want of both

financial help and lack of support of his wife who was in judicial

custody at that time. Thus, it is apparent that due to the deficiency

of outside yet imperative factors the deceased failed to heal and

succumbed to his injuries and did not die an immediate death due

to the alleged burning on the intervening night of 24/25th March,

1995.

18. In view of the above discussion, this Court is of the

considered opinion that the prosecution has not been able to prove

its case against the appellant beyond reasonable doubt. Thus, the

appellant is entitled for acquittal while extending benefit of doubt.

19. Consequently, from the totality of evidence, facts and

circumstances discussed above, the judgment of conviction and

order on sentence passed in the present case are set aside. The

appellant is accordingly acquitted of the charge framed.

20. The appellant is out on bail. The bail bond and surety bond

stands discharged.

21. The appeal is accordingly allowed.

(P.S.TEJI) JUDGE APRIL 25, 2017 dd