Prabha Wati vs State Of Hry
2022 Latest Caselaw 13842 P&H

     CRA-S-1038-SB-2007(O&M)                                      1



       IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH

                               CRA-S-1038-SB-2007(O&M)
                               Date of decision:-1.11.2022


Prabha Wati

                                                            ....Appellant
                         Versus


State of Haryana

                                                          ....Respondent

CORAM : HON' BLE MR. JUSTICE H.S. MADAAN

Argued by :Mr.Sandeep Sharma, Advocate and
           Ms.Anuradha, Advocate
           for the appellant.

            Mr.Vijesh Sharma, Addl.A.G., Haryana.

            ****

H.S. MADAAN, J.

1. Feeling aggrieved by judgment dated 29.3.2007 passed by

Additional Sessions Judge, Panchkula vide which on conclusion of trial

in case FIR No.271 dated 20.6.2005, under Sections 302/34 IPC,

registered with Police Station Sector 5, Panchkula, he had convicted

accused Prabha Wati wife of Ramesh Kumar for an offence under

Section 304 Part II IPC as well as order dated 30.3.2007 in terms of

which, she was sentenced to undergo rigorous imprisonment for 10

years and to pay a fine of Rs.2,000/- and in default of payment of fine to

undergo further rigorous imprisonment for six months, accused Prabha

Wati has approached this Court by way of filing the instant appeal.

2. Briefly stated, facts of the case as per the prosecution story

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are that on 18.6.2005, on receipt of a telephonic message at Police

Station Sector 5, Panchkula from Police Post PGI, Chandigarh regarding

admission of Suman wife of Lalita Prashad, resident of House No.1402,

Rajiv Colony, Panchkula, in a burnt condition at PGI, Chandigarh, HC

Krishan Singh along with Constable Randev Singh went to said medical

institute, where HC Krishan Singh recorded statement of injured

Smt.Suman, who inter alia stated that on 18.6.2005 at about 4:30 a.m. in

the morning, while she was taking water from a tap in front of her house

and her husband Lalita Prashad had gone out to answer the call of

nature, then suddenly somebody came from behind, poured kerosene oil

on her and set her ablaze; when she took a turn, she observed that a

woman wearing SAARI had entered house of Ramesh Chand son of

Ram Surat residing in their neighbourhood and closed the door.

She further stated in her statement that on 17.6.2005 at 7:00

p.m., Prabha Wati wife of Ramesh had placed a cot in the street near

house of complainant/injured and when the latter asked her to remove

the same, a dispute took place between them; thereafter Shakuntla, sister

of Ramesh threatened to kill the complainant. The complainant/injured

stated that when she was put on fire, she raised an alarm of bachao -

bachao, which attracted her neighbours; she put water on herself, in that

way, the fire was extinguished; in the meanwhile, Lalita Prashad,

husband of complainant/injured also arrived at the spot, who took her to

General Hospital, Sector 6, Panchkula in a three-wheeler of Prem Nath

for treatment, from there she was referred to PGI, Chandigarh.

In her said statement, complainant/injured further stated

that she had a complete doubt that Prabha Wati wife of Ramesh and

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Durga Devi wife of Rajesh had tried to kill her by putting her on fire on

account of the grouse due to earlier dispute.

3. After recording statement of complainant/injured

Smt.Suman, HC Krishan Singh put his endorsement below it, sending

the said statement to Police Post, Sector 16, Panchkula, where report

No.8 dated 18.6.2005 was entered regarding the incident. HC Krishan

Singh went to the spot, verified the facts, collected copy of MLR of

Suman and finding that offences under Sections 323, 307 IPC were

disclosed, an FIR No.271 dated 20.6.2005 for the offences under

Sections 323, 307 IPC was registered at Police Station Sector 5,

Panchkula.

On 20.6.2005, ASI Kanwaljeet Singh along with HC

Krishan Singh went to the house of complainant/injured, where her

husband Lalita Prashad handed over a petikot and SAARI, which were

partly burnt to ASI Kanwaljeet Singh, which clothes were taken into

possession vide a separate recovery memo.

On 29.6.2005, injured Suman succumbed to the injuries at

PGI, Chandigarh. ASI Kanwaljeet Singh went there and carried out

inquest proceedings under Section 174 Cr.P.C. He got postmortem

conducted on the dead body of Suman from PGI, Chandigarh itself. On

account of death of Suman, offence under Section 302 IPC was added in

the FIR. ASI Kanwaljeet Singh went to the spot and prepared rough site

plan of the place of occurrence. He recorded statements of witnesses.

Durga Devi and Prabha Wati named by the complainant/injured Suman

in her statement to the police were arrested in this case on 29.11.2005 by

Inspector Ram Kala, CIA Staff, Panchkula. After completion of

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investigation and other formalities, challan against both the accused was

prepared and filed in the Court of Chief Judicial Magistrate, Panchkula.

4. On presentation of challan in the Court of learned Chief

Judicial Magistrate, Panchkula, he supplied copies of documents relied

upon therein to the accused free of costs as provided under Section 207

Cr.P.C. Then finding that the offence under Section 302 IPC is

exclusively triable by the Court of Sessions, learned Chief Judicial

Magistrate, Panchkula committed the case to the Court of learned

Sessions Judge, Panchkula vide order dated 9.1.2006 from where it was

entrusted to the Court of learned Additional Sessions Judge, Panchkula.

5. On receipt of case in the Court, learned Additional Sessions

Judge Panchkula, observing that prima facie charge for offences under

Section 302 read with Section 34 IPC was disclosed against both the

accused, they were charge-sheeted accordingly, to which, they pleaded

not guilty and claimed trial.

6. During the course of its evidence, the prosecution examined

as many as thirteen witnesses, namely, PW1 Constable Yadvinder

Singh, PW2 Constable Ved Parkash, PW3 ASI Manphool Singh, PW4

EHC Gurdev Singh, PW5 Ram Saran, Draftsman, PW6 Dr.Aruna

Dhingra, PW7 Lalita Prashad, PW8 Meena Devi, PW9 Dr.Yoginder

Bansal, PW10 ASI Kanwaljeet Singh, PW11 Inspector Balram, PW12

HC Krishan Singh, PW13 DSP Ram Kala. Thereafter, giving up the

remaining PWs, the learned Public Prosecutor had closed the evidence

of prosecution.

7. Statements of both the accused were recorded under Section

313 Cr.P.C., in which all the incriminating circumstances appearing in

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prosecution evidence were put to them but they denied the allegations

contending that they were innocent and had been falsely involved in this

case.

Accused Durga Devi stated that on 18.6.2005 she was

present in her house, preparing meals for her family and on that day no

incident had taken place in her presence; at about 4:30/5:00 a.m., she

came to know about the occurrence from her neighbours; even the

deceased had not named her being a participant in the incident.

Whereas accused Prabha Wati took up a plea that on

18.6.2005, she was taking a bath in her house; she did not know how the

deceased had received burn injuries and she was not present at the spot

at that time; she came to know regarding the incident from her

neighbours. She further added that at the time of incident, neither any

family member of the deceased nor any member of public was present;

as stated by the deceased herself in her statement, even she had not

named her or alleged anything against her and she had been falsely

implicated in this case.

8. In their defence evidence, the accused produced documents

i.e. copy of statement of Lalita Prashad recorded under Section 175

Cr.P.C. as Ex.DA and copy of statement of Lalita Prashad recorded

under Section 161 Cr.P.C. as Ex.DB.

With that the defence evidence stood closed.

9. After hearing arguments, learned trial Court acquitted

accused Durga Devi and convicted and sentenced accused Prabha Wati,

as mentioned above, which left her aggrieved and she had filed the

present appeal, which was taken up on 21.5.2007 when it was admitted

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for regular hearing. On application under Section 389 Cr.P.C. having

been filed on behalf of the appellant, her remaining sentence was

suspended during the pendency of the appeal vide order dated 3.12.2008

and she was ordered to be released on bail on her furnishing bonds to the

satisfaction of CJM, Panchkula.

10. Now the appeal has come up for final hearing.

11. I have heard learned counsel for the appellant - accused -

convict, learned Additional Advocate General for the State of Haryana

besides going through the record.

12. The most important piece of evidence in this case is the

statement made by the injured Suman before HC Krishan Singh on

18.6.2005 while she was admitted in PGI, Chandigarh in an injured

condition having suffered severe burn injuries. She had succumbed to

those injuries on 29.6.2005. Therefore, her such statement is to be taken

as her dying declaration. As is commonly said truth sits upon the lips of

a dying person. A person contemplating death would not normally tell a

lie. It is for that reason solemnity is attached to the words coming from

the mouth of a person, who is about to depart from this moral world and

statement of such person is given due weightage and importance,

although such statement is not tested by cross-examination. The

statement made by Suman comes out to be natural and in normal course.

Though she had not stated that it was Prabha Wati, who had poured

kerosene oil on her and set her ablaze but all the circumstances points

out towards involvement of Prabha Wati in the case. Suman had stated

that some woman had come from behind and poured kerosene oil on her

setting her on fire, thereafter, going to the house of Ramesh and shutting

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the door from inside. Ramesh is none-else but husband of Prabha Wati

and they are having house in the neighbour of the house of the deceased.

She had further referred to a dispute between her and Prabha Wati, a day

prior to the incident. The reason for the dispute being Prabha Wati had

placed a cot in the street to which the deceased had objected. In her

statement, Suman had stated that she nursed a strong doubt that it was

Prabha Wati, who had set her ablaze after putting kerosene oil upon her.

13. Even otherwise, the evidence adduced by the prosecution

point out that it was Prabha Wati, who is the culprit in this case. PW7

Lalita Prashad, husband of the deceased deposed about dispute having

taken place between his wife Suman deceased and accused Prabha Wati

stating that the latter had threatened to kill the former and the matter was

reported at Police Post, Sector 16 Panchkula, where his wife Suman

moved an application Ex.PH and he had gone along with her; on the

next day, at about 5:30 a.m. while his wife Suman was taking water

from the tap, then both the accused reached there; accused Durga Devi

poured kerosene oil on Suman, whereas Prabha Wati set her ablaze with

a match box; he reached at the spot, then both the accused ran away. He

further stated that he had tried to save his wife and in the process had

received injury on his hand; Suman was taken to General Hospital at

Panchkula from where she was referred to PGI, Chandigarh, where her

statement was recorded. He identified signatures of his wife Suman on

the statement adding that Suman had died due to burn injuries after 10-

12 days. In his cross-examination, he stated that the dispute had earlier

arisen between accused as well as deceased wife Suman regarding a wall

prior to the incident and Prabha Wati as well as Suman had received

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injuries in the occurrence, which took place a day prior to the incident.

In that way, the accused themselves admit a quarrel having taken place

between the parties prior to the incident in question. In that way, Prabha

Wati had a strong motive to cause death of Suman by burning. In his

cross-examination, Lalita Prashad was confronted with the earlier

statements Ex.DA and Ex.DB made by him, wherein he had not claimed

to have seen the incident. Even if it is taken that he was not there at the

spot when the incident had actually taken place and he had arrived there

soon after the incident and had taken his wife to hospital, his wife

making statement to the police in the hospital in his presence, all these

things make him a material witness and his testimony is to be given due

weightage in terms of Section 6 of the Evidence Act applying the

principle of res gestae. Section 6 provides that facts which, though not

in issue, are so connected with a fact in issue as to form part of the same

transaction, are relevant, whether they occurred at the same time and

place or at different times and places.

14. Then there is testimony of PW8 Meena Devi, who deposed

that on 17.6.2005 at about 7/7:30 p.m., a dispute had taken place

between Suman deceased and accused persons regarding a wall and she

along with some other woman had taken Suman to General Hospital,

Sector 6, Panchkula and further Suman had moved an application at

Police Post, Sector 16, Panchkula that accused were threatening her. She

further added that on the next day at about 5/5:30 a.m., Suman came in

front of her house in burning condition and she was crying that she had

been burnt and she be saved; thereafter her husband Lalita Prashad came

and took Suman to General Hospital, Sector 6, Panchkula. Although in

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her cross-examination, she stated that she did not see any person putting

Suman on fire but she stated that dispute regarding wall was between

Suman and both the accused.

15. As already observed, the statement got recorded by Suman

with the police is a crucial piece of evidence admissible under Section

32 of the Evidence Act, which provides that statements, written or

verbal, of relevant facts made by a person who is dead, are relevant

when those relate to cause of death or any of the circumstances of the

transaction, which resulted in death of that person.

16. The remaining evidence adduced by the prosecution also

supports its case on material aspects.

PW1 Constable Yadvinder Singh had taken a sealed parcel

given to him by ASI Manphol Singh to FSL Madhuban depositing it

there.

PW2 Constable Ved Parkash had taken the special reports

given to him by MHC Amarjit Singh on 20.6.2005 for delivering those

to Illaqa Magistrate and Senior Police Officers.

PW3 ASI Manphool Singh, who on 9.12.2005 was posted

as MHC, P.S. Sector 5, Panchkula deposed about Constable Randev

Singh depositing with him a sealed parcel along with sample seal, which

he had handed over to Constable Yadvinder Singh for depositing the

same in the office of FSL, Madhuban. He stated that so long as those

articles remained in his possession, no tampering therewith had taken

place.

PW4 EHC Gurdev Singh had proved report/DDR No.25

dated 17.6.2005 as Ex.PA and report/DDR No.8 dated 18.6.2005 as

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Ex.PB and report/DDR No.27 dated 29.6.2005 as Ex.PC.

PW5 C-1 Ram Saran, Draughtsman deposed regarding his

visiting the spot on 18.8.2005 and preparing scaled site-plan thereof as

Ex.PD.

PW6 Dr.Aruna Dhingra, who while posted as Medical

Officer in G.H. Sector 6, Panchkula on 17.6.2005 at about 9:25 p.m. had

medico legally examined Suman preparing her MLR, stated that the

patient came to the hospital with the history of assault at 6:00 p.m. and

she had observed several injuries on her person. She had proved copy of

her MLR as Ex.PF. She stated that she had also medically examined

accused Prabha Wati finding several injuries on her person. She proved

her MLR as Ex.PG.

PW9 Dr.Yoginder Bansal, Asstt. Professor, Department of

Forensic Medicines, PGI, Chandigarh stated that on 29.6.2005, he had

conducted postmortem examination on the dead body of Suman and

found following external injuries:

Infected dertmoepidernal burn injuries were present over upper

front of abdomen, few patches over lower front of abdomen, front

and back of both forearms including palms, front and back of

both lower limbs, few abdomen patches over right side back, left

side upper back of abdomen. A scalp hair in front and pubic hair

showed sinzing. A skin was peeled of at most places leaving a

greenish yellow leathary base on to which foul smelling pus like

material was sticking. Unhealthy granulation tissue was present

at the margin of healthy and unhealthy region. Area of burn :

60% of total body surface area.

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Internal examination:

Brain, liver spleen, both kidneys were found

congested. Larynx and trachea contained foul smelling

discharged in the lumen. Both lungs shown consolidation patches

in all lobes.

In his opinion cause of death in this case was due to

septicaemia consequent to infected burn injuries as described. All the

burn injuries were ante-mortem and caused due to fire. The probable

time lapsed between injury and death around 11 days and between death

and postmortem examination ten hours thirty minutes as calculated.

He proved the postmortem report as Ex.PL.

PW10 ASI Kanwaljit Singh, the Investigating Officer of

this case deposed with regard to the investigation conducted by him

proving various documents.

PW11 Inspector Balram, a formal witness, who had

prepared challan in this case deposed in that regard.

PW12 HC Krishan Singh stated that on 17.6.2005 while he

was posted at Police Post Sector 16, Panchkula, on that day Prabha Wati

came to the police post and told about quarrel between her and Suman,

who had beaten her; thereafter he had recorded DDR and got Prabha

Wati medico legally examined from General Hospital, Sector 6,

Panchkula. He further stated that after some time Suman also came there

and reported about the occurrence stating that Prabha Wati had beaten

her. Thereafter, both went back seeking some time. He further deposed

that on 18.6.2005 on receipt of information from PGI, Chandigarh, he

went there and sought medical opinion regarding fitness of injured

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Suman to make statement and on getting the opinion in affirmative, he

recorded her statement Ex.PJ appending his endorsement Ex.PJ/1 below

it and on the basis of that DDR Ex.PB was recorded. He further stated

that on 20.6.2005, he along with Constable Nahan Singh and ASI

Kanwaljit Sihngh went to the house of Suman, where they met Lalita

Prashad, husband of Suman and Lalita Prashad handed over a petikot

and one saari partly burnt to ASI Kanwaljit Singh, which were taken

into possession vide recovery memo Ex.PN.

PW13 DSP Ram Kala, who had carried out the

investigation in this case partly deposed in that regard.

17. Thus, from the evidence both oral as well as documentary,

brought on file by the prosecution, the prosecution had successfully

established that on 18.6.2005 at about 4:30/5:00 a.m., Prabha Wati had

poured kerosene oil upon Suman, setting her ablaze causing burn

injuries to her to which she had succumbed later on. Prabha Wati had a

strong motive to commit such criminal act on account of quarrel having

taken place between her and the deceased a day earlier with regard to

dispute regarding a wall. Accused has not furnished any reasonable or

plausible explanation which might have created a reasonable doubt in

the mind about her involvement in the incident.

18. It may be mentioned here that the facts and circumstances

of the case and evidence brought on record by the prosecution rather

disclosed a more grave offence of murder than culpable homicide not

amounting to murder. The incident had not taken place at the spur of

moment, rather Prabha Wati nursed a grudge against Suman on account

of quarrel, which had taken place between them a day earlier and she

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had performed the criminal act after due deliberations and planning

bringing kerosene oil and match box with her and while Suman was

drawing water from the tap, she poured kerosene oil upon her and set

her ablaze. Therefore, such criminal acts were squarely covered within

the definition of murder in terms of Section 300 of the Indian Penal

Code because death was caused with intention of causing death or

causing such bodily injury, which the accused knew was likely to cause

death of Suman. Rather the case did not fall within exception to Section

300 because there is nothing to show that the accused was deprived of

the power of self-control by grave and sudden provocation coming from

victim Suman. The reason given by the trial Court for convicting

accused for offence under Section 304 Part II IPC instead of 302 IPC is

not very convincing. Nevertheless as more than 15 years have passed

since the date of judgment, I do not find it proper and appropriate to

convict the appellant/accused for the offence under Section 302 IPC and

would rather maintain the conviction for the offence under Section 304

Part II IPC.

19. The prosecution had proved its case against the accused

conclusively and affirmatively beyond a shadow of reasonable doubt.

The judgment of conviction passed by the trial Court is well reasoned

one, based upon proper appraisal and appreciation of evidence and

correct interpretation of law. There is no illegality or infirmity therein.

20. As such, the judgment of conviction and order of sentence

are upheld, whereas appeal is found to be without any merit and the

same is dismissed accordingly.

21. Prabha Wati appellant - accused is stated to be on bail

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granted to her by this Court vide order dated 3.12.2008 while

suspending her sentence. Her bail is cancelled. Chief Judicial

Magistrate, Panchkula is directed to issue arrest warrant to get her

arrested so as to make her undergo the remaining sentence.

                                               (H.S.MADAAN)
1.11.2022                                         JUDGE
Brij

             Whether speaking/reasoned         :      Yes/No
             Whether Reportable                :      Yes/No




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