Ashok Kumar vs State of Himachal Pradesh

Vivek Singh Thakur, Judge

Appellant has preferred this appeal against judgment of conviction and order of sentence dated 12.07.2024, passed by Additional Sessions Judge, Sarkaghat, District Mandi, H.P. in Sessions Trial Criminal Case No. 3 of 2019, titled State of Himachal Pradesh vs. Ashok Kumar, in case FIR No. 282/2018, dated 14.11.2018, registered in Police Station Sarkaghat, District Mandi, H.P. under Section 302 of IPC, whereby appellant-convict has been convicted for life imprisonment, i.e., imprisonment during his natural life, for commission of offence punishable under Section 302 of IPC for committing murder of his wife.

Prosecution case is that on 12.11.2018, at about 10:55 P.M., one Pooja Devi R/O village Chandesh, Gahar through her Mobile No. 98827-05130 had informed control room Mandi that Jyoti Devi had suffered fire injury and they were taking her to the hospital. On receiving this information in Police Station Sarkaghat from District Control Room, HC Bhav Dev, No. 912 along with HHC Ravi Singh, No. 175, C. Sanjay Kumar, No. 213 in official vehicle, being driven by HHC Mahender Singh, No. 762, left the Police Station to Civil Hospital Sarkaghat and in this regard, daily dairy No. 051, dated 12.11.2018 (Ext. RS-1) and daily diary No. 002, dated 13.11.2018 (Ext. RS-2) were registered.

On reaching hospital at Sarkaghat, Police submitted an application to Medical Officer for opinion regarding condition and fitness of the victim to make statement, whereupon Doctor opined that victim was in fit state of mind to make statement. In furtherance thereto, statement of victim was recorded in presence of Dr. Ranjana, who certified the statement.

In her statement, victim stated that her husband was driver by occupation and she had two months old daughter and four years old son, and when she started gas stove for preparing milk for her daughter, gas was leaking and, thereafter, suddenly a fireball appeared and her hair were burnt. The moment she cried, her husband came to save her and she had suffered burnt injuries on account of fire and nobody had put her on fire.

Thereafter, victim was referred from Civil Hospital Sarkaghat to Lal Bahadur Shastri Medical College Ner Chowk for further treatment. Appellant-convict accompanied his wife and informed his in-laws on mobile that victim was referred to Ner Chowk hospital and he was going with her to the said hospital.

From Ner Chowk hospital, victim was referred to IGMC Shimla and from IGMC Shimla, she was referred to PGI Chandigarh. When she was being taken to PGI Chandigarh, she died. Thereafter, her dead body was brought back to Civil Hospital Sarkaghat.

After completing formalities including filling up 25:35 form, dead body of deceased-victim was handed over to her in-laws, who cremated the victim.

Parents of victim went to Police Station and father of the victim made a statement under Section 154, Cr.P.C. (Ext. PW1/A) before SHO, alleging that on 12.11.2018, at about 8:30 P.M., his daughter (deceased) gave him missed call on mobile and, thereafter, he called her and they inquired well being of each other. At about 10:30 P.M., Pawan, brother-in-law (Jeth) of deceased Jyoti, made a call from his mobile phone to mother of Jyoti on her mobile phone informing that Jyoti Devi had been put on fire and was totally burnt and she was not breathing. On inquiry about Ashok Kumar, Pawan informed that he has fled and Jyoti was being taken to Sarkaghat Hospital in ambulance, and further that at about 11:00/11:30 P.M. his son-in-law Ashok Kumar informed telephonically that doctors have referred the victim to Ner Chowk hospital and he was shifting Jyoti to the said hospital, whereupon he (father) and his wife (mother) reached Ner Chowk.

After giving first aid, victim was referred to IGMC Shimla, wherefrom she was referred to PGI Chandigarh. Both of them accompanied victim in an ambulance. On the way, during that travel, victim disclosed her mother that her husband had poured some liquid on her body, which was smelling like petrol and kerosene oil.

It has been further stated in statement recorded under Section 154, Cr.P.C. that victim also stated that appellant-convict was cruel person and later on he will kill their children and out of his fear, no one in the area would be able to give statement against him.

Lastly, it was stated by father of the victim that because of ill-treatment by the appellant-convict, either his daughter had committed suicide out of frustration for cruelty and harassment given by her husband or appellant-convict had killed her by putting on her fire after pouring some liquid on her.

On the basis of aforesaid statement, FIR was registered under Sections 302, 498A and 306 of IPC. Investigation was carried out and statements of witnesses were recorded. Expert team from forensic visited the room of incident and collected relevant material as evidence.

On finding sufficient proof for commission of offence, appellant was arrested on 14.11.2018 at 2:00 A.M. and his arrest was informed to his brother Pawan Kumar and Pradhan of Gram Panchayat Gahar Kuldeep Chand Sharma.

On 14.11.2018, postmortem of victim was conducted at Civil Hospital Sarkaghat and it was opined that deceased died due to hypovolemic shock with multiple organ failure with cardiopulmonary arrest due to antemortem burn, however, final opinion was reserved till receipt of report relating to viscera.

Forensic team had taken in possession half burnt shirt, scissors, pant, on the basis of identification by appellant-convict Ashok Kumar. Preserved samples were sent for chemical examination to RFSL.

After receiving chemical analysis report, challan was prepared and presented in the Court, but after removing Sections 498A and 306 of IPC with observation that no evidence was found about commission of offence under these sections.

On 16.08.2019, after taking into consideration prima facie material against the appellant, charge against him was framed under Section 302 of IPC.

For pleading not guilty, appellant was subjected to trial.

Prosecution examined 30 witnesses, whereas after recording statement under Section 313 of Cr.P.C., appellant-convict did not lead any evidence.

PW-1 Krishan Chand, PW-2 Suman Devi and PW-3 Saurabh are father, mother and brother of victim, respectively. PW-4 Bali Ram is a person, who was instrumental in arranging the marriage of appellant-convict with victim.

PW-8 Pawan Kumar, PW-9 Ganga Devi and P-12 Ajay Kumar are brother-in-law (Jeth), mother-in-law (Saas) and son of the victim, residing with his aunt, i.e., sister of appellant-convict Ashok Kumar.

PW-10 Parvati Devi and PW-11 Saraswati Devi are neighbourers of in-laws. PW-18 Thakur Dass, PW-23 Satish Kumar and PW-29 Sub-Inspector Vinod Kumar have investigated in part to complete the investigation.

PW-13 Dr. Anjana and PW-15 Dr. Nidhi had examined the victim and issued Medico Legal Certificate (MLC) on record, respectively.

PW-5 Kuldeep Chand Sharma is Pradhan, whereas PW-7 Uday Singh is also resident of the same area. They witnessed recovery of certain items.

PW-20 Pratap Singh is Patwari and PW-28 Sanjay Kumar is Photographer. PW-6 Head Constable Vijay Kumar is MHC, who registered the FIR and received articles from Investigating Officers. PW-14 HHC Tilak Raj is a witness to the recovery of clothes of the appellant-convict. PW-16 Dr. Ajay Verma took scalp hair for chemical examination and made endorsement in this regard on Ext. PW16/A under his signatures.

PW-30 Dr. Vijay Kumar is Assistant Director of Forensic Science Laboratory. PW-22 Narender Pal is Panchayat Secretary, who has produced record of family register and registration of marriage between appellant-convict and deceased-victim.

PW-26 Shashi Kant Verma and PW-27 Devender Verma are Nodal Officers of mobile telephone companies.

There are certain other witnesses, who have been examined to prove the recovery and seizure of certain items, including burnt articles/clothes from the room of the occurrence.

Prosecution’s case is based on the statement under Section 154 of Cr.P.C. (Ext. PW1/A), lodged by PW-1 Krishan Chand, who is father of deceased-victim, wherein he alleged that his daughter did not disclose true incident at first instance because of fear that her children will not be taken care of, whereas it was appellant-convict, who put his daughter on fire. PW-2 Suman Devi (mother) and PW-3 Saurabh (brother) are also family members of the victim and PW-4 Bali Ram is the person, who was instrumental in arranging marriage of the appellant-convict and deceased-victim. The entire case depends upon the veracity of these witnesses, i.e., PW-1 Krishan Chand, PW-2 Suman Devi, PW-3 Saurabh and PW-4 Bali Ram.

PW-8 Pawan Kumar is elder brother of the appellant-convict. PW-9 Ganga Devi is mother-in-law of the deceased-victim and to some extent, their statements as well as PW-10 Parvati Devi and PW-11 Saraswati Devi, are also relevant in attempt to elucidate the truth.

In case statements and depositions levelling allegation of murder are found to be correct, then only the other evidence on record has to be considered as supportive evidence in the matter. In statement under Section 154, Cr.P.C. (Ext. PW1/A), PW-1 Krishan Chand has stated that PW-8 Pawan Kumar, brother of appellant, telephonically informed PW-2 Suman Devi that Ashok Kumar had fled after putting the victim on fire and Pawan Kumar also disclosed that they were taking the victim in ambulance to Sarkaghat hospital.

Thereafter, it has been stated by PW-1 Krishan Chand that at 11:00-11:30 P.M. during night, he, i.e., PW-1 Krishan Chand received a telephonic call from their son-in-law Ashok Kumar (appellant-convict), who informed that doctors had referred the victim to hospital at Ner Chowk and, therefore, he was taking the victim to Ner Chowk, whereupon PW-1 Krishan Chand and PW-2 Suman Devi reached Ner Chowk, where some first aid was given to victim and she was referred to IGMC Shimla. From IGMC Shimla, she was referred to PGI Chandigarh and on the way PW-1 Krishan Chand and PW-2 Suman Devi were accompanying deceased-victim and at that time, their daughter disclosed them about pouring of some liquid upon her and putting her on fire by appellant-convict Ashok Kumar.

It has been further stated by PW-1 Krishan Chand that it was also told by the victim that in case she died her children would be killed by appellant-convict and, therefore, she requested to take her children for avoiding any adverse impact upon her children.

His statement was concluded by PW-1 Krishan Chand, stating that because of harassment and cruelty of his son-in-law Ashok Kumar (appellant-convict), his daughter had ended her life or appellant-convict Ashok Kumar had killed her by pouring some liquid upon her.

After the incident, there are two statements of victim, which are being referred by the appellant-convict as well as the State. In first statement recorded in presence of Doctor, victim stated that no one had put her on fire, but she suffered fire injuries because of fireball, which suddenly appeared when she was heating the milk for her two months old daughter.

Another statement is the information given by the deceased-victim to her parents especially mother and from whom, information was gathered by PW-1 Krishan Chand, when she was being taken from IGMC Shimla to PGI Chandigarh.

An employee of Medical Department was also accompanying the deceased-victim along with her parents to PGI Chandigarh, but no person has been cited as witness in the list of witnesses, nor has been examined to verify the factum of disclosure made by the deceased-victim to her parents.

Though, it is quite possible that third person sitting in the ambulance may not be understanding what information was given by the deceased-victim to her parents, but definitely the said person was a necessary witness to be examined to prove atleast that victim was interacting with her parents and was disclosing something. It has also come on record in the statements of PW-1 Krishan Chand and PW-2 Suman Devi that when victim was being taken to PGI Chandigarh, she was on oxygen and pipe of oxygen was continuously in the nose of deceased-victim. In such a situation, question arises whether at that time, she was able to speak or not.

Even if, for the sake of arguments, it is presumed that deceased-victim had disclosed certain facts to PW-1 Krishan Chand and PW-2 Suman Devi, including the fact that she was put on fire by her husband, then in such eventuality, there was no occasion for PW-1 Krishan Chand to say in statement recorded under Section 154, Cr.P.C. that his daughter had either herself ended her life or had been killed by appellant-convict Ashok Kumar.

PW-1 Krishan Chand in his statement recorded under Section 154, Cr.P.C. has stated that appellant-convict had fled from the spot after putting their daughter on fire and, thereafter, he informed them that he was taking her (deceased-victim) to Ner Chowk, but in the Court this witness has omitted to say that their son-in-law (appellant-convict) had contacted them on mobile phone at 11:00-11:30 P.M. and he was accompanying the wife to the hospital. Therefore, there is improvement to implicate their son-in-law for death of the daughter of PW-1 Krishan Chand and PW-2 Suman Devi.

In GD No. 002, dated 13.11.2026 (Ext. RS-2) at 1:50 A.M., it has been recorded that husband of victim Ashok Kumar, who had departed along his wife to the medical college Ner Chowk.

At this stage, it would also be relevant to refer Daily Diary GD No. 051, dated 12.11.2018, at 10:55 P.M. (Ext. RS-1) recorded in Police Station Sarkaghat, wherein it has been recorded that Pooja Devi, R/O village Chandesh, Gahar through her mobile phone No. 98827-05130 had informed the Police Control Room that some fire had broken. On receiving this information from control room, police Constable Rakesh Kumar Jaswal contacted Pooja Devi on telephone, who further informed that Jyoti Devi had suffered fire injuries and they were bringing her to hospital.

According to PW-1 Krishan Chand and PW-2 Suman Devi, Pawan Kumar informed them that their son-in-law (appellant-convict) had run away after putting his wife on fire, but this appears to be an afterthought because at the first instance, Pooja Devi (Jethani of victim and wife of PW-8 Pawan Kumar) informed the police that there was fire. She did not say that appellant-convict Ashok Kumar put his wife on fire and ran away. Pooja Devi may have thrown light on this subject, but she has given up by Public Prosecutor by stating that she was won over. A witness cited in the list of witnesses has to be examined in the Court without any interference of either party, but here it appears that Public Prosecutor interacted with Pooja Devi, who was present and available for her deposition, but unfavourable to the prosecution’s case and in such eventuality, giving up witness, being won over by the appellant-convict is unwarranted, as before examining the witness in the Court, it cannot be presumed that witness has been won over by the accused person.

In this regard, it is also apt to notice that in MLC issued by PW-13 Dr. Anjana, who first attended the victim at Civil Hospital Sarkghat has recorded that victim was brought to the hospital by her husband Ashok Kumar. She has also recorded that it was informed that victim had suffered burnt injuries because of leakage of gas.

Ashok Kumar had also suffered injuries and he had been medically examined by PW-15 Dr. Nidhi. On his examination, she had noticed burnt injuries suffered by appellant-convict and she had opined that injuries were possible at the time of extinguishing fire from any person and further admitted that injury No. 3 could be caused in police custody or anywhere by anyone.

There is another key witness, i.e., son of victim and the appellant-convict PW-12 Ajay Kumar, who in the Court in his examination-in-chief has stated that his father had not done anything and he did not use to beat him and his mother and nobody had put his mother on fire and his mother got fire while she was boiling milk. This witness has not been declared hostile. No effort was made to re-examine this witness or to confront the witness with his earlier statement recorded by the police. Therefore, version placed on record by this witness has been admitted by the prosecution.

At the time of incident, only persons present were deceased-victim, appellant-convict, four years old son and two months old daughter of the couple. The son present there was capable of noticing and deposing and he has been examined as PW-12 by Trial Court after satisfying that he was deposing voluntarily and was competent to testify and was able to understand the sanctity of truth.

It is also relevant to note that, according to PW-1 Krishan Chand and PW-2 Suman Devi, their daughter was worried about the fate and future of her children and, therefore, she did not disclose truth to the police. They further stated that she had requested them to take care of her children in the event of her death. However, admittedly, the children were not taken into the care by their maternal grandparents, rather, PW-2 Suman Devi, in her cross-examination, admitted that the children were being looked after by the sister of appellant-convict Ashok Kumar.

Had there been any truth in the claim of PW-1 Krishan Chand and PW-2 Suman Devi that the deceased had disclosed the relevant facts to them while being taken in the ambulance, they would have certainly made every endeavour to take the children into their own care, particularly in view of the alleged request made by their daughter. This is not a case where maternal family is looking after the children after the death of the deceased, instead they remained in the care of the appellant-convict's sister.

Further, if the deceased-victim had, in fact, disclosed that the offence had been committed by Ashok Kumar, there was no occasion for PW-1 Krishan Chand to lodge a report stating that either his daughter had committed suicide or had been killed by her husband. Had any such disclosure actually been made, PW-1 and PW-2 would have consistently narrated those facts from the very beginning. It appears that daughter had not disclosed anything. It is brain child of parents of deceased-victim to rope the appellant-convict in a case, as they might have lodged the FIR to teach lesson to their son-in-law for accidental death of their daughter, probably being not happy with behaviour of appellant, which may not have any link with incident.

The room was locked by the police immediately after the incident and it was opened on arrival of Forensic expert team. Forensic team collected certain material from the room. They had collected some partially burnt wet cloth pieces, semi burnt cloth pieces, hair, matchbox containing live matchsticks and plastic cigarette lighter. As per chemical analysis report, kerosene oil was detected in the plastic bottle, containing few drops of yellow coloured liquid and in partially burnt clothes collected near the bed, but no kerosene oil was detected in semi burnt debris collected from different places of the room as well as outside the room and light brown coloured towel, partially burnt shirt, grey coloured pant of the appellant-convict.

In the MLC also, Doctor did not notice kerosene oil smell or any other traces of kerosene oil. In postmortem report also, there is nothing to suggest that Doctor conducting the postmortem had noticed any smell of kerosene oil. As per the opinion of the Doctor, deceased-victim had died due to hypovolemic shock with multiple organ failure with cardiopulmonary arrest due to antemortem burn. In inquest report as well as in form No. 25:35 also, no smell of kerosene was recorded by the Investigating Officer.

PW-24 HC Bhav Dev was member of police party, arrived in room of incident first of all. He has admitted that a five litre gas cylinder was there in the room, which strengthen the first statement made by deceased and defence of the appellant.

PW-10 Parvati Devi and PW-11 Saraswati Devi did not support prosecution’s case and they were declared hostile for resiling from their previous statements. However, nothing material could be elucidated in favour of the prosecution in their cross-examinations by Public Prosecutor, after declaring them hostile witnesses by Trial Court.

PW-30 Dr. Vijay Kumar has admitted that drops mentioned in RFSL report were of yellow colour, whereas PDS kerosene is of blue colour. Further, that kerosene has a characteristic odor.

There is force in the contention of learned counsel for the appellant-convict that bottle recovered from the spot did not contain kerosene oil. At the same time, there also appears force in further submission that turpentine oil is often mixed with kerosene. In support of this contention, reliance has been placed upon the Review Article titled "Detection and Identification of Kerosene in Turpentine Oil", published in the Journal of Forensic Chemistry and Toxicology, Volume 12, Number 1, January–June 2026, wherein it has been observed as under:-

As statements of PW-1 Krishan Chand and PW-2 Suman Devi are not reliable with respect to the cause of death of the deceased-victim, and PW-3 Saurabh and PW-4 Bali Ram have deposed only with regard to previous incidents, the prosecution has failed to prove its case beyond reasonable doubt. Rather, in view of the nature of the evidence led by PW-1 Krishan Chand, PW-2 Suman Devi, and PW-12 Ajay Kumar, a genuine doubt arises regarding the veracity of the prosecution's case and the truthfulness of the statements of PW-1 and PW-2.

The learned Deputy Advocate General is also unable to explain that, if the deceased-victim had specifically disclosed to her parents that the appellant-convict had set her on fire, there was no reason for PW-1 Krishan Chand to alternatively state that his daughter had ended her life on account of cruelty and harassment meted out to her by the appellant-convict. Had such a specific disclosure actually been made, PW-1 Krishan Chand would not have attributed an alternative cause of death, rather he would have consistently adhered to the version allegedly disclosed by his daughter, whether to him or to his wife. The inconsistency and uncertainty evidence in the testimony of PW-1 Krishan Chand clearly indicates that the prosecution's story is an afterthought and that even PW-1 was not certain about the actual cause of death. This inconsistency, by itself, demolishes the entire prosecution's case, which stands further weakened by the testimony of the deceased-victim's son, proving to be the final nail.

It is well settled that where a reasonable doubt exists, its benefit must be extended to the accused. Once a doubt arises regarding the credibility and reliability of the key witnesses on whose testimony the prosecution's case primarily rests, no useful purpose would be served by discussing the remaining evidence on record, which is not substantive evidence but merely corroborative or link evidence intended to connect various facts and articles with the commission of the offence.

In view of above discussion, we are of the considered opinion that charge against the appellant-convict has not been proved beyond reasonable doubt by leading cogent, reliable and convincing evidence.

Accordingly, impugned judgment of conviction and order of sentence dated 12.07.2024, passed by Additional Sessions Judge, Sarkaghat, District Mandi, H.P. in Sessions Trial Criminal Case No. 3 of 2019, titled State of Himachal Pradesh vs. Ashok Kumar, in case FIR No. 282/2018, dated 14.11.2018, registered in Police Station Sarkaghat, District Mandi, H.P. under Section 302 of IPC are set-aside. The appellant is acquitted of the charges and is directed to be released forthwith if not warranted to be detained in any other case.

Release warrants be issued forthwith, if not required in any other case.

Case property, if any, will be confiscated to the State strictly in accordance with law after expiry of period of limitation of filing further proceedings before competent Court of law.

The fine amount, if deposited, be refunded after the expiry of period of limitation for filing the appeal, in case no appeal is preferred, and in case of filing appeal, the same be dealt with as per the orders of the Apex Court.

In view of the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023 the appellant is directed to furnish his personal bond in the sum of ₹50,000/- with one surety in the like amount to the satisfaction of the Trial Court within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the appellant on receipt of notice(s) thereof, shall appear before the Hon’ble Supreme Court.

Record of Trial Court be sent back forthwith.

Appeal is allowed and disposed of in aforesaid terms, so also pending miscellaneous application(s), if any.