Pawan vs State Of Haryana
2022 Latest Caselaw 10972 P&H

CRA-D-640-DB-2012 (O&M)                                                 -1-

        In the High Court of Punjab and Haryana at Chandigarh


                                          CRA-D-640-DB-2012 (O&M)
                                          Reserved on: 07.9.2022
                                          Date of Decision: 12.9.2022

Pawan                                                          ......Appellant

                                        Versus

State of Haryana                                             ......Respondent

CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
       HON'BLE MR. JUSTICE N.S.SHEKHAWAT

Present:    Ms. Amarjot Sangha, Advocate
            for the appellant.

            Mr. Anmol Malik, DAG, Haryana.

                        ****

SURESHWAR THAKUR, J.

1. The instant appeal is directed against the impugned verdict, as

made on 8.2.2012, by the learned Sessions Judge, Jind, upon Sessions Case

No. 60 of 15.6.2011, wherethrough, he proceeded to convict the accused, in

respect of a charge drawn against him, for an offence punishable under

Sections 302 of the IPC. Moreover, vide a separate sentencing order, drawn

on 8.2.2012, he proceeded to impose, upon the convict, the sentence of life

imprisonment qua an offence punishable under Section 302 the IPC, besides

in respect thereof, imposed a sentence of fine, as comprised in a sum of

Rs. 10,000/-, and, also, upon default of payment of fine amount, the convict

became sentenced to undergo rigorous imprisonment for a term extending

upto a period of one year.

2. The convict becomes aggrieved from the above recorded

verdict of conviction, and, also, from the consequent therewith sentence(s)

of imprisonment and of fine as became imposed, upon him, and hence

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becomes led to constitute thereagainst the instant appeal before this Court.

Factual Background

3. The genesis of the prosecution case becomes embodied in the

appeal FIR, to which Ex. PH is assigned, whereins it is mentioned that on

2.3.2011, on receipt of a telephonic message from the police station, E/SI

Jagphool Singh, who along with lady ASI Ram Patti, and, EHC Naresh

Kumar No. 784, was present at Old Bus Stand, Safidon, in connection with

patrolling, after collecting medical ruqa, reached General Hospital,

Safidotn, and, collected MLR of the injured from the doctor. He also

obtained his opinion regarding condition of injured Mukesh, who declareed

her fit to make a statement. Thereafter, on an application moved by him, the

learned Illaqa Magistrate concerned, recorded her statement in question-

answer form. Subsequently, Sub Inspector Jagphool Sigh obtained a

certified copy of the aforesaid statement of injured Mukesh, and, after

making his endorsement thereon he sent the same along with MLR to the

Police Station, through EHC Naresh Kumar, on the basis of which initially a

case under Section 307 of the IPC was registered in Police Station, Safidon,

vide FIR No. 43 of 2.3.2011. However, on 3.3.2011, on receipt of a

telephonic information regarding the death of injured Mukesh in PGIMS,

Rohtak, Sub Inspector Jagphool Singh went there, and, conducted inquest

proceedings in respect of her dead body. Post-mortem examination on the

dead body was got conducted, and, the offence under Section 307 of the IPC

was converted into the one under Section 302 of the IPC.

Investigation and committal Proceedings

4. After registration of the FIR (supra), the investigating officer

concerned, launched investigations into the appeal FIR, and after conclusion

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of investigations thereinto, he proceeded to institute a report under Section

173 of the Cr.P.C., before the learned committal Court concerned. The

learned committal Court concerned, through a committal order made on

1.6.2011, proceeded to commit the case to the Court of Session.

Trial Proceedings

5. Consequently, the learned Sessions Judge concerned,

proceeded to draw a charge against the accused, for an offence punishable

under Section 302 of the IPC, and, also put the afore charge to the accused,

to which he pleaded not guilty, and, claimed trial.

6. In proof of its case, the prosecution examined 17 witnesses,

and, thereafter the learned Public Prosecutor concerned, closed the

prosecution evidence. Consequently, the learned trial Judge concerned,

proceeded to draw proceedings, under Section 313 of the Cr.P.C., but

thereins, the accused pleaded innocence, and, claimed false implication.

Though, the accused claimed the granting of leave to him, for leading

defence evidence, but the above granted leave never became availed by him.

Submissions of the learned counsel for the appellant

7. The learned counsel for the aggrieved convict-appellant herein,

has made an argument before this Court, that the impugned verdict of

conviction, and, consequent therewith sentence(s) (supra), as imposed, upon

the convict-appellant, does warrant an interference.

I. In making the above submission, she rests it, upon the factum

that the convict had taken the deceased to hospital for treatment of burn

injuries, and, that then in the MLR, to which Ex. PB is assigned, no

imputation of guilt became attributed to the convict. Therefore, she

contends that the declaration as made by the deceased, and, as embodied in

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Ex. PE/6, whereins she attributes an incriminatory role to the convict, rather

becomes bereft of any evidentiary worth.

Submissions of the learned State counsel

8. On the other hand, the learned State counsel has argued before

this Court, that the judgment, as challenged before this Court, is well

merited, and, does not warrant any interference.

Reasons for rejecting the above submission

9. The above made submission by the learned counsel for the

convict would impress this Court, only when she was able to cogently

establish, that at the time of drawing of MLR, to which Ex. PB is assigned,

the declarant was declared by the treating doctor, to be fit to make a

statement, besides hers also establishing that thereafter she made a

statement exculpating the convict, otherwise not.

10. Moreover, she could also dilute the efficacy of Ex. PE/6,

whereins becomes embodied a dying declaration, as, made by the deceased

before the learned SDJM, Safidon, whereins she inculpates the convict qua

the charged offence, only when she was able to establish from the evidence

on record, that the declarant was then not declared fit by the competent

doctor, to make a dying declaration. However, for the reasons to be assigned

hereinafter, this Court comes to the conclusion, that the dying declaration,

as embodied in Ex. PE/6, is worthy of acceptance. The prime reason being

that the doctor concerned, prior to its making hence declared in Ex. PD/1, in

Ex. PE/1, and, in Ex. PE/4, that she was fit to make a statement. The makings

of Ex. PE/1, and, Ex. PE/4 occur on the very same day when the declarant,

through a dying declaration, as embodied in Ex. PE/6, and, as became made

before PW-17, rather thereins inculpated the convict. The dying declaration,

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as carried in Ex. PE/6 is in the form of questions, and, answers, respectively

put to the declarant by the learned SDJM, Safidon, and, answered by the

declarant. Thereins becomes carried the right thumb impression of deceased

Mukesh. Moreover, Ex. PE/8, as carried at the end of Ex. PE/6, is a

certificate signatured by the learned SDJM, Safidon. The same carries an

echoing, that the right thumb mark impression, as made on Ex. PE/6, was

made by the declarant, without any pressure, becoming exerted from any

side, besides it speaks that it contains a true, and, authentic account about

the inculpation, as drawn thereins against the convict. The dying

declaration, as comprised in Ex. PE/6, is ad verbatim extracted hereinafter.

"Question : How you caught fire ?

             Answer:      Today around 1/1.30 P.M I went to make the
                          water hot on the hearth.        My husband Pawan

threw a can of oil upon me and thereafter, igniting a match-stick me on fire. Thereafter, I ran out. Question : Who was present in the house at that time ? Answer : At that time my father-in-law Balwan was present in the house. He was taking rest. Mother-in-law was not available in the house as she had gone to attend a marriage.

             Question:    When you got married ?
             Answer :     I got married about 6-7 years ago.
             Question : How many children you have ?
             Answer:      I have one son and one daughter.
             Question : Who had brought you here ?
             Answer :     I do not know who brought me here in the
                          hospital.
             Question : Have yo anything else to say ?
             Answer :     My son and daughter be sent to the house of my
                          parents in village Manderi."

11. The utmost evidentiary solemnity is to be assigned to Ex. PE/6,

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as it has been proven to be not only authored by the deceased declarant,

who made her right thumb impression thereons, but also when it has been

drawn by the Judicial Officer concerned, who on his stepping into the

witness box, has proven all the contents, as carried thereins. His testimony

about the right thumb marking, as made thereons, hence by the declarant,

has not been falsified, through able denials thereof or through able proof,

nor the certificate Ex. PE/8 carrying the above echoings has been belied.

Since the certificate, as carried in Ex. PE/8, is preceded by a declaration of a

doctor qua the fitness of the declarant to make a statement. Moreover, when

the declaration of fitness of the deceased to make a statement, has also been

proven by the doctor concerned, upon his stepping into the witness box as

PW-3, therefore, also immense creditworthiness is to be assigned to the

dying declaration (supra), as made by the declarant/deceased, in respect of

the cause of her demise.

The reason for rejecting the efficacy of the dying declaration on the ground of MLR Ex. PB not inculpating the convict

12. The learned counsel for the convict, has also made an argument

before this Court, that the dying declaration (supra) is not worthy of

credence, as in the MLR Ex. PB, relevant portion whereof becomes

extracted hereinafter, she has not then made to the treating doctor, any

inculpatory declaration against the convict.

"Flame burns 2nd to 3rd degree involving face, body, trunk, back, both upper limbs and lower limbs. Both hands and both feet spared of burns. Approximate burn area 90 to 95% with respiratory burns. Hair partially burnt over head. Both eyebrows and eyelashes burnt. Body covered with sand. Remnants of clothes removed and sealed in sealed in white cloth.

Duration of burns : within 2 hours.

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 CRA-D-640-DB-2012 (O&M)                                                -7-

               Nature of burns : dangerous to life
               Cause of burs : flame burns"

13. The above contention is rejected, as at the time of treatment of

Mukesh, by the treating doctor, there is no declaration by the doctor, that

she was fit to make a statement. If so, and, with the hereinabove occurring

reflection thereins, that the deceased had suffered simple burn injuries,

besides even if she was taken to the hospital for treatment, by the convict.

Nonetheless, yet the above do not constitute any valid exculpatory bedrock

qua the convict, unless, as above stated, the doctor who prepared the MLR

Ex. PB, after making a declaration about the fitness of the deceased to make

a statement, had received from the injured, a signatured statement about the

burn injuries, becoming self sustained or being accidently sustained.

However, the above possible exculpatory pleas neither become echoed in

Ex. PB, nor any suggestion, qua the above possible exculpatory pleas,

became put to the doctor concerned, who drew Ex. PB, and, who stepped

into witness box as PW-3. Consequently, for the want of the above in

Ex. PB, this Court cannot proceed to not assign credence to dying

declaration, as carried in Ex. PE/6, especially when as above stated, it

became provenly authored by the deceased, and was counter signatured by

the Judicial Officer concerned. Moreover also when he has made a

signatured certificate thereons about its making being without any pressure,

being exerted, upon the deceased, besides when the validity of the above

certificate has not come under any cloud.

Medical Evidence

14. The doctor PW-3, who conducted the post-mortem, on the

dead body of the deceased proved the post-mortem report, to which Ex. PY

is assigned. In her examination-in-chief, she proved that the cause of 7 of 9

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demise was a sequel of superficial to deep burn wounds, and, its

complications. The above are stated in the post-mortem report, Ex. PY, to

be ante mortem in nature, and, are also declared to be sufficient to cause

death in normal course of life. Since the post-mortem report, as carried in

Ex. PY, has been proven by its author, upon hers stepping into the witness

box, resultantly the above opinion about the cause of demise of the

deceased, does corroborate, the imputation of guilt to the convict in the

dying declaration, to which Ex. PE/6 is assigned.

FSL Report

15. The report of the FSL is comprised in Ex. PN. During the

course of investigations, the investigating officer concerned, had prepared

four cloth parcels, and, on each he had subscribed the seal impressions. The

above cloth parcels became sent through memo No. 491/S of 7.3.2011, to

the FSL concerned. On receipt of four cloth parcels in the FSL concerned,

an examination was made thereons by the scientific officer, leading to a

conclusion that Exhibit-2 was a sample of kerosene, and, that Exhibit-1,

and, 3 are the residues of kerosene, besides qua in Exhibit-4, no residues of

kerosene being detected.

Inference from the report of the FSL

16. Exhibit-1, Exhibit-2, and, Exhibit-3, do respectively appertain

to the burnt clothes of the deceased, to one sealed white plastic canny

containing five liters of kerosene, and, to some flakes of soil. Since upon

their respective examination(s), an opinion was formed by the chemical

analyst concerned, that each containing traces of kerosene. Therefore, the

opinion (supra), as made upon the collected items (supra), through the

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relevant recovery memo(s), by the investigating officer concerned, from the

crime site, does also corroborate, and, support the inculpatory dying

declaration, as made by the deceased declarant, against the convict.

Therefore, the prosecution has been able to prove the charge drawn against

the convict.

Final order

17. The result of the above discussion, is that, this Court does not

find any merit in the appeal, and, is constrained to dismiss it. Consequently,

the appeal is dismissed. The impugned verdict of conviction, and, the

consequent therewith sentence(s), as becomes imposed upon the convict-

appellant, by the learned convicting Court, is maintained, and, affirmed. If

the convict is on bail, thereupon, the sentence of life imprisonment, as

imposed, upon the convict-appellant, be ensured to be forthwith executed by

the learned trial Judge concerned, through his drawing committal warrants.

The case property be dealt with, in accordance with law, but after the expiry

of the period of limitation for the filing of an appeal.

18. Records be sent down forthwith.

19. The miscellaneous application(s), if any, is/are also disposed

of.

(SURESHWAR THAKUR) JUDGE

(N.S.SHEKHAWAT) JUDGE September 12, 2022 Gurpreet Whether speaking/reasoned : Yes/No Whether reportable : Yes/No

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