Punjab-Haryana High Court
Neeraj Kumar vs State Of Punjab on 28 March, 2022
208
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CRA-D No.1004-DB of 2013
Date of Decision: 28.03.2022
Neeraj Kumar
........Appellant.
Versus
State of Punjab
........Respondent
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
HON'BLE MRS. JUSTICE MEENAKSHI I. MEHTA
*****
Present:- Ms. Monita Mehta, Advocate
for the appellant.
Mr. H.S. Grewal, Addl. A.G., Punjab
for the respondent.
MEENAKSHI I. MEHTA, J.
Feeling aggrieved by the judgment and order on sentence
dated 18.03.2013 as handed down by learned Additional Sessions Judge,
Hoshiarpur (for short 'the trial Court') in the criminal case arising out of
the FIR bearing No.113 dated 22.09.2011 registered at Police Station
Model Town, Hoshiarpur, under Sections 498-A and 302 IPC whereby the
appellant has been held guilty for committing the offence under Section
302 IPC and has been sentenced to undergo rigorous imprisonment for life
and to pay the fine to the tune of Rs.5000/- and in case of default in the
payment thereof, to further undergo rigorous imprisonment for a period of
03 months, he (appellant) has preferred the instant appeal.
2. Bereft of unnecessary details, the allegations, as levelled
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against the appellant in the present case, are that on 11.09.2011, his wife
named Pinki (since deceased) was admitted in Civil Hospital, Hoshiarpur
for having suffered the burn injuries. After obtaining the opinion of the
doctor regarding her fitness to make any statement, the JMIC, Hoshiarpur
recorded her statement and in view thereof, DDR No.15 was entered on
12.09.2011. However, in compliance of the order passed by learned
Sessions Judge, the Chief Judicial Magistrate again recorded the statement
of the afore-named injured on 19.09.2011 wherein she alleged that on the
day of occurrence, she was present in her house along-with her children.
Her husband, i.e the appellant, returned home and he was drunk at that
time. He abused and gave kick blows to her and then, he bolted the door
from inside and poured kerosene oil on her and set her ablaze. He used to
ask her to bring Rs.50,000/- from her parents and to bring a woman for
him. On her raising an alarm, their neighbours gathered at the spot and the
appellant fled away from there. She made a phone call to her brother
named Mohan Lal who brought her to the hospital and at the time of the
recording of her earlier statement, she was not in her full senses. On the
basis of her above-mentioned subsequent statement, a formal FIR was
registered under Section 498-A IPC. Later-on, the afore-named victim
succumbed to her injuries and the offence under Section 304-B IPC was
added in the case. During the investigation, the offence under Section 302
IPC was introduced and the offence under Section 304-B IPC was deleted
in this case and on the completion of necessary investigation, the Challan
was presented against the appellant in the Court.
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3. After perusing the police report under Section 173(2) Cr.P.C
as well as the documents referred to therein and hearing learned Additional
Public Prosecutor for the State and learned defence counsel, the trial Court
framed the charges against the appellant on 01.02.2012 under Sections 302
and 498-A IPC and he pleaded not guilty to the same and claimed trial.
4. To substantiate its allegations against the appellant (accused),
the prosecution examined as many as 07 witnesses namely Shri Ram
Kumar as PW1, Kajal as PW2, Mohan Lal as PW3, Dr. Harjinderjit Singh
as PW4, Dr. Jaswinder Singh as PW5, Draftsman Arjun Kumar as PW6
and SI Kuldeep Kumar as PW7 and thereafter, learned State counsel closed
the prosecution evidence. Then, the appellant was examined under Section
313 Cr.P.C. to explain the circumstances/incriminating material appearing
against him in the prosecution evidence on the record wherein he pleaded
innocence and stated that he had been falsely implicated in this case. In his
defence evidence, he (appellant) examined Shri Prashant Verma, JMIC,
Sunam as DW1. After hearing learned State counsel as well as learned
defence counsel, the trial Court recorded the conviction of the appellant
(accused) under Section 302 IPC while acquitting him under Section 498-A
IPC and awarded the sentence to him as detailed in the opening para of this
judgment.
5. We have heard learned counsel for the appellant as well as
learned State counsel in the present appeal and have also gone through the
record thoroughly.
6. Learned counsel for the appellant has pointed out that in her
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first dying declaration Exhibit DF as recorded on 11.09.2011, the deceased
had disclosed about her having sustained the burn injuries accidently while
lighting the stove whereas in her second dying declaration Exhibit P-8,
which was recorded subsequently on 19.09.2011, she has implicated the
appellant while alleging that he had poured kerosene oil upon her and had
lit the matchstick and had set her on fire and he has contended that learned
trial Court has erroneously relied upon her above-said subsequent dying
declaration and has convicted the appellant whereas her first dying
declaration should have been given weightage because the same, being
prior in time, is supposed to be containing the true account of the
occurrence resulting into the burn injuries on her (victim's) person and it
being so, the appellant deserves his acquittal in this case.
7. However, it is pertinent to mention here that in Nagabhushan
vs. State of Karnataka, 2021 (2) RCR (Criminal) 289, the Apex Court has
recently made the following observations: -
"8. At this stage, the decisions of this Court in the
cases of Nallam Veera Stayanandam v. Public
Prosecutor (2004) 10 SCC 769; Kashmira Devi v.
State of Uttarakhand (2020) 11 SCC 343; and
Ashabai v. State of Maharashtra (2013) 2 SCC 224
are required to be referred to. In the aforesaid
decisions, this Court had an occasion to consider the
cases where there are multiple dying declarations. In
the aforesaid decisions, it is held that each dying
declaration has to be considered independently on its
own merit as to its evidentiary value and one cannot
be rejected because of the contents of the other. It is
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also held that the Court has to consider each of them
in its correct perspective and satisfy itself which one
of them reflects the true state of affairs. When there
are multiple dying declarations, each dying
declaration has to be separately assessed and
evaluated on its own merits."
8. It goes undisputed in the present case that the deceased and the
appellant were living together in the same house and the occurrence in
question had taken place there only. In her subsequent dying declaration,
the deceased categorically alleged that after setting her ablaze and on
seeing the neighbours gathering at the spot, the appellant fled away from
there and then, she telephonically called her brother who had brought her to
the hospital. In normal course of events, if the wife accidently sustains the
burn injuries, then the husband is supposed to remain with her and to make
all the possible endeavours to save her life by taking her to the hospital at
the earliest for her immediate medical treatment and cannot be expected to
run away leaving his wife writhing in pain and agony. In case the appellant
was innocent and had no role to play in the said occurrence, then there
could not have been any occasion for him to escape from the spot, instead
of taking his wife, i.e the victim, to the hospital.
9. Further, in the Inquest Report Exhibit PA, it has specifically
been mentioned that on the receipt of an intimation, through verbal
transmission, regarding the said victim and the appellant having been
admitted in the hospital on 11.09.2011, SI Kuldeep Kumar reached there
and came to know that the appellant had left the OPD after taking the
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medicine and was not admitted there. The factum of the appellant having
taken the medicine for his injuries, in itself, does suffice to prove his
presence at the spot at the time of the said occurrence. Again, being the
husband of the victim, he was supposed to stay with his wife during the
period when she remained admitted in the hospital for her treatment but
throughout in his statement as recorded under Section 313 Cr.P.C, the
appellant has nowhere stated that he had remained with his wife, i.e the
deceased, to take care of her during the said period and he has also not led
any evidence on the record to this effect.
10. Though the appellant is stated to have sustained the burn
injuries but as discussed in the preceding paragraph, he had left the OPD
after taking the medicine for the same and did not remain admitted in the
hospital for his treatment and these facts make it clear that the injuries
suffered by him were not serious in nature at all. Moreover, Hon'ble
Supreme Court has also observed in Nagabhushan's case (supra) that
"merely because the accused husband might have tried to extinguish fire, it
would not bring the case out of clause fourthly of Section 300 IPC and the
act of the accused pouring the kerosene on the deceased and thereafter,
setting her ablaze by matchstick was imminently dangerous which, in all
probabilities would cause death".
11. To cap it all, Exhibit PM is the memo as prepared by the
Investigating Officer at the time of effecting the recovery of the plastic
bottle having smell of kerosene and the matchstick box from the place of
occurrence and the factum of any stove having been found lying at the spot,
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does not find mention in the same. This fact also renders the above-said
version of the deceased, as put-forth in her first dying declaration regarding
her having accidently caught the fire while lighting the stove, highly
improbable.
12. All the above-discussed facts and circumstances, when tested
on the touch-stone of the afore-cited observations as made by the Apex
Court in Nagabhushan's case (supra), unequivocally speak volumes
regarding the truthfulness of the version of the deceased as narrated in her
subsequent dying declaration Exhibit P8. It being so, it is held that the trial
Court has not committed any error in relying upon the above-discussed
subsequent dying declaration of the deceased to record the conviction of
the appellant in this case.
13. Learned counsel for the appellant has also contended that
PW-2 Kajal is the minor child of the deceased and the appellant and PW-3
Mohan Lal happens to be the sibling of the deceased and thus, both these
witnesses, being closely related to the deceased, are interested witnesses
and therefore, their testimonies should not have been relied upon to hold
the appellant guilty in the present case.
14. However, this contention also does not hold much water
because the afore-named PW2, being the daughter of the deceased and the
appellant, was supposed to be at home at the time of the alleged
occurrence, i.e 08:00 PM and is, thus, a natural witness to the same.
Moreover, she is supposed to be having equal love and affection as well as
respect for both her parents, i.e the deceased and the appellant. Therefore,
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we do not find any cogent reason to believe that she would have falsely
deposed against the appellant, her father, to get him implicated/convicted in
this case. As regards the testimony of PW3 Mohan Lal, he is the brother of
the deceased and as discussed earlier, he had brought her to the hospital. It
being so, he must be well-versed with the facts and circumstances resulting
into the burn injuries on the person of his sister which ultimately proved
fatal for her. Hence, his testimony cannot be painted with black colour
merely on account of his said relationship with the deceased.
15. As a sequel to the fore-going discussion, it follows that the
impugned judgment as well as the order on sentence as passed by learned
trial Court, do not suffer from any illegality, infirmity, irregularity or
perversity so as to call for any interference by this Court and are,
accordingly, upheld. Resultantly, the present appeal, being sans any merit,
stands dismissed.
(RITU BAHRI) (MEENAKSHI I. MEHTA)
JUDGE JUDGE
28.03.2022
neetu
Whether speaking/reasoned: Yes
Whether Reportable: Yes
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