Haveli Ram vs State of Haryana

Jawahar Lal Gupta, J.

Did the appellants pour kerosene oil on Raj Kumari and scorch her ? The trial Court has held that "On 25.5.1991 ..... all the accused in furtherance of the common intention .... and on the instigation of Puran Chand accused, Kashmiri Lal and Haveli Ram burnt her by pouring kerosene oil on her person .... as a result of which she succumbed to her injuries on 27.5.1991 in Jai Parkash Narain Hospital, New Delhi." Is it so ? A few facts as relevant for the decision of the case may be briefly noticed.

On November 23, 1986, Raj Kumari (the deceased) was married to Kashmiri Lal (one of the appellants). On May 25, 1991, Raj Kumari suffered burn injuries at about 6 a.m. She was taken to the Civil Hospital, Panipat by her husband, Kashmiri Lal so as to reach there at 6.50 a.m. At 7.05 a.m., the doctor sent a message to the City Police Station. It is Ex.PO. It reached the Police Station at 7.45 a.m. A short while later the police reached the Hospital. Sub Inspector Hari Singh submitted an application (Ex.PN) to the Doctor Incharge of the Civil Hospital to find out if Raj Kumari was fit to make a statement. At 8.10 a.m., Dr. R.K. Garg (PW10) recorded his opinion that she was fit to make a statement vide endorsement Ex.PN/1. Mr. A.K. Jain, Judicial Magistrate Ist Class, Panipat (PW 14) completed the recording of the statement Ex.PP of Raj Kumari at 10.05 a.m. A copy of the statement was supplied to the police vide Ex.PC. On the basis of this statement, F.I.R. Ex.PC/1 alleging that an offence under Section 307 I.P.C. had been committed was recorded. A copy was sent to the Magistrate which reached him on May 27, 1991.

The parents of Raj Kumari learnt of the incident. Her fatherKrishan Lal (PW15), her unclePuran Chand (PW14) and Rakha (PW17) reached Panipat. Raj Kumari was shifted to the Lok Naik Jai Parkash Hospital, New Delhi. Unfortunately, she expired on May 27, 1991 at 11 a.m. The inquest was conducted by Mr. R.S. Yadav, the Sub Divisional Magistrate, Delhi (PW5). It is Ex.PE. A special report was sent through constable Ishwar Singh. It reached the Judicial Magistrate, Ist Class, Panipat on May 28, 1991 at 10.45 a.m. On the same day, Section 302 was added in the F.I.R.

The case was investigated. The three appellants viz. the fatherinlaw Haveli Ram, the husbandKashmiri Lal and the brotherinlaw Puran Chand (Jeth) were charged for offences punishable under Sections 302/34 and 304B I.P.C. They have been found guilty of murder under Sections 302/34 I.P.C. and sentenced to undergo life imprisonment alongwith a fine of Rs. 100/ each. In default of the payment of fine, they have been sentenced to undergo rigorous imprisonment for six months. Aggrieved by the judgment, they have filed the present appeal.

The prosecution alleges that Krishan Lal had performed the marriage of his daughter according to his means. The couple had two children a son who was about five years of age and a daughter who was about four years old at the time of the incident. A few months after the wedding, the accused had started making demands for money. Initially, Krishan Lal had paid an amount of Rs. 2,000/. Subsequently, a demand for Rs. 20,000/ was made. When Krishan Lal refused to comply with this demand, the accused started maltreating Raj Kumari. She approached the Women Crime Cell at Delhi. A compromise was arrived at. Gurditta, Chaman, Mangal and Roshan undertook to take care of Raj Kumari. She was sent to her matrimonial home. Kashmiri Lal had undertaken to produce her in the Cell after 15 days. However, he did not comply with this. The deceased wrote a letter dated March 25, 1991 to her father (Ex.PQ) in which she alleged that her husband was demanding Rs. 10,000/ which had been spent by him in defending the litigation before the Women Crime Cell.

On the fateful morning of May 25, 1991, Kashmiri Lal and his father Haveli Ram are alleged to have caught hold of Raj Kumari, sprinkled kerosene oil on her and then set her on fire. She ran out of the house. Some people extinguished the fire. Her Jeth Puran Chand (one of the appellants) was not present at the spot but he had instigated the other two. She was taken to the Civil Hospital. After the recording of her statement by the Magistrate F.I.R. Ex.PC/1 was recorded.

On May 27, 1991, a team from the Forensic Science Laboratory visited the spot. Raj Kumar (PW11) took the photographs. A plastic can Ex.P1 was taken into possession vide memo Ex.PU. A bundle of burnt pieces of clothes was made into a sealed parcel Ex.P2. It was taken into possession vide memo Ex.PU/1. Earth smeared with kerosene oil was made into a sealed parcel Ex.P3 and was taken into possession vide memo Ex.PU/2. A burnt curtain was made into a parcel Ex.P4 and taken into possession vide memo Ex.PU/3. All these parcels were sealed with the seal of RK. A rough site plan Ex.PB was also prepared.

The case was initially registered under Section 307 IPC. However, on May 28, 1991, information was received that Raj Kumari had expired. Thus, Section 302 I.P.C. was added. On May 29, 1991, the Investigation officer visited the Lok Naik Jai Parkash Hospital, New Delhi and learnt that the inquest proceedings had been conducted by the SDM. He also visited the house of the father of the deceased who had handed over the letter Ex.PQ to him. The record of the Women Crime Cell was also taken into possession.

The prosecution rests its case on the testimony of various witnesses. The medical evidence consists of the statements of Dr. R.K. Garg (PW10), Civil Hospital, Panipat and Dr. Anil Aggarwal (PW20) who conducted the postmortem examination. Constable Lal Singh (PW1) filed his affidavit Ex.PA. He carried the various articles which were taken into possession to the Forensic Science Laboratory. PW2 Head Constable Subhash Chand filed an affidavit Ex.PB. He averred that the various articles which had been taken into possession from the place of occurrence were deposited with him. PW3 A.S.I. Hardeep Singh had recorded the F.I.R. Balak RamPW4 was the Draftsman who had prepared the site plan Ex.PD. Mr. R.S. Yadav (PW5) is the SDM, Delhi who conducted the inquest and had also recorded the statement of Krishan Lal, the father of the deceased. The inquest report is Ex.PE. Constable Ishwar Singh (PW6) had delivered the special report to the Judicial Magistrate. Ashok Kumar (PW7) is a cousin of Kashmiri Lalthe appellant. PW8 Jivanda Ram is the brother of Haveli Ramthe appellant, PW 9 Chaman Lal was a mediator. PW 11 Raj Kumar is the photographer. PW 12 A.S.I. Daya Nand is from the Delhi police. He deposed with regard to the receipt of complaint from Raj Kumari on January 4, 1991. It had been forwarded by Mr. K.L. Arora, Chairman, Progressive East Delhi Citizen Council. The complaint made by Raj Kumari is Ex.PL. He stated that the enquiry into the complainant not been conducted by him but by Smt. Harkala Thapa, Inspector. PW 13 Puran Chand is the uncle of the deceased. He deposed with regard to the demand for dowry etc. PW14 Mr. A.K. Jain, Judicial Magistrate, Ist Class, Panipat had recorded the statement of Raj Kumari on May 25, 1991 in the Civil Hospital, Panipat. PW15 Krishan Lal is the father of the deceased. Mrs. Harkala Thapa, Inspector appeared as PW16. Ram Rakha appeared as PW17. Sub Inspector Hari Singh, the Investigating Officer and Sub Inspector Madan Lal appeared as PWs 18 and 19. Reference to the documentary evidence shall be made at the appropriate place.

On the basis of the evidence adduced by the prosecution, the trial Court has found that

(i) "There is nothing to disbelieve her statement" contained in the dying declaration Ex.PP; and

(ii) "There was some dispute between Smt. Raj Kumari and her husband Kashmiri Lal ... for this reason she had made various applications in the Women Crime Cell in which her husband was also summoned .... compromise had taken place on 22.3.1991 ... The reason which compelled the accused to burn Smt. Raj Kumari is the receipt of summons Ex.PR/5 for 24.5.1991 as Kashmiri Lal accused did not take Raj Kumari before Women Crime Cell after 15 days of 22.3.1991 .... The accused got annoyed on receipt of the summons and quarrelled with Raj Kumari and burnt her."

Hence, the conviction and the present appeal.

Mr. R.S. Cheema, learned counsel for the appellants contended that the dying declaration Ex.PP should not be relied upon as there was no evidence to indicate that Raj Kumari was physically fit to make the statement. Still further, it was conceded that Haveli Ram has not been accused of anything by the respondent at any stage. Thus, he had no motive to cause any harm to Smt. Raj Kumari. Still further, the counsel submitted that Kashmiri Lal has two brothers Mangal and Puran Chand who are elder to him. Both would be Jeths. Admittedly, no one was named. Therefore, the dying declaration should not be used to hold appellantPuran Chand as guilty of any crime. In the absence of any direct evidence, the conviction of the appellants could not be sustained.

On the other hand, Mr. Vishal Sharma, appearing for the State of Haryana, rested the case solely on the dying declaration. He submitted that it had been duly recorded by the Magistrate. The deceased was in a fit state to make the statement and that the persons named in the dying declaration have been rightly convicted.

Admittedly, Raj Kumari was taken to the Hospital by her husbandKashmiri Lal. The incident had allegedly taken place at 6 a.m. She had reached the Hospital at 6.50 a.m. At 8.10 a.m., the Doctor had recorded his opinion Ex.PN/1 that she was fit to make the statement. Dr. R.K. Garg, who made that statement, has appeared as PW10. He has deposed that at the time of admission, Raj Kumari was conscious. Her blood pressure reading was 120/80. The pulse rate was 76 per minute. He states that on the request of the police, he "had given opinion Ex.PN/1 that Smt. Raj Kumari was fit to make the statement." In his crossexamination, he has stated that the patient "had been referred to Lok Naik Jai Parkash Narain Hospital on the request of Shri Krishan Lal." He further stated that orally, he could not say "whether the Magistrate had obtained fitness certificate about recording statement of Raj Kumari." Furthermore, the statement of PW18 Sub Inspector Hari Singh shows that he had received a telephonic message from the Moharrir Head Constable that a woman had been admitted in the General Hospital in a burnt condition. He acknowledges having received a message Ex.PO from Dr. R.K. Garg. He had submitted application Ex.PN to Dr. Garg for obtaining the opinion regarding her fitness to make the statement. After having received the opinion vide endorsement Ex.PN/1, the witness contacted Shri A.K. Jain, the then Duty Magistrate, who went to the Hospital and recorded her statement Ex.PP...." In cross examination, he stated that the Duty Magistrate had stayed in the Hospital for about half an hour. The F.I.R. had been recorded on the basis of the copy of the statement Ex.PC which is the same as Ex.PP. Still further, we have the testimony of Mr. A.K. Jain, the Judicial Magistrate, Ist Class. He appeared as PW14 and stated that the statement was recorded by him. It was read over to Raj Kumari. She had thumbmarked it at Ex.PP/1 after admitting it to be correct. He had "given certificate after the statement Ex.PP/2..... in my hand." In cross examination, he states that he had completed recording the statement at 10.05 a.m. On reaching the Hospital, he had found that "there were some relatives of Raj Kumari beside her bed ...." He had "asked them to leave the room." He also claimed to have obtained the Doctor''s opinion about her fitness to make the statement.

Besides the above noted oral testimony, even the statement Ex.PP as recorded by Mr. A.K. Jain, PW 14 may be noticed. It reads as under :

"Statement of Raj Kumari W/o Kashmiri Lal aged 2122 years r/o Indra Puri Loni BorderDelhi.

Stated that our case is pending at Delhi. I had come to live at the house of my husband for some time. Today in the morning my husband Kashmiri Lal and my fatherinlaw Haveli Ram caught hold me, poured kerosene oil on me, then both of them set me on fire. I came out of the house, then some people extinguished my fire. My Jeth was not there but he had instigated these people."

I have made this statement without any pressure and in my full sense.

Ex.PP1

RO & AC

Thumb impression

RTI of Raj Kumari

Sd/

Sh. A.K. Jain

25.5.91

at 10.05 a.m.

This statement has been recorded by me in Civil Hospital Panipat. Before recording it, I had got vacated this room. This statement has been recorded by me in my own hand today at 10.05 a.m.

Ex.PP2

Sd/,

Sd/ in English

Sd/ Addl. Sessions Judge

Sd/ Panipat 29.9.93."

25.5.1991 JMIC(D)

Panipat

It was contended by Mr. Cheema that Mr. A.K. Jain, Judicial Magistrate, Ist Class had not obtained any certificate from the doctor before recording the above statement.

Let us assume that the counsel is right in his submission. Can we still hold that Raj Kumari was not in a fit state to make the statement ?

Admittedly, Dr. R.K. Garg, had certified her to be fit to make the statement at 8.10 a.m. This is borne out from a perusal of Ex.PN and Ex.PN/1. Still further, the admitted position is that the relatives who were present in the room had been sent out before the statement was recorded. A perusal of the statement shows that Raj Kumari had given her name, her husband''s name, her age and address. Still further, she had given information which was within her knowledge only. She had talked about the case in Delhi. She had given the description of the incident. She had also stated that her Jeth was not there. She alleged that he had instigated "these people". More than everything else, she claims to have made the statement "without any pressure and .... in .... full sense." The information, the answers and the claim that she was in her full senses leave no manner of doubt that Raj Kumari was in a fit state of health to make the statement. Added to all this is the fact that the statement had been recorded by the Judicial Magistrate in his own hand. Besides this, even when he appeared as a witness in court, it was not suggested on behalf of the appellants that Raj Kumari was not fit to make the statement. On the contrary, the suggestion was "that Raj Kumari had given tutored version." This suggestion is clearly indicative of the fact that even according to the defence, she was mentally alert.

On a combined reading of the statements of PWs 10, 14 and 18 as also on examination of the documents Ex.PN, Ex.PN/1 and Ex.PP, we hold that Smt. Raj Kumari was in a fit state of health to make the statement.

It was contended by Mr. Cheema that the bed head ticket of the deceased had been purposely withheld by the prosecution.

It is true that the bed head ticked had not been produced. However, no inference adverse to the prosecution can be drawn. Dr. R.K. Garg who had looked after the deceased in the Hospital had appeared as PW10. There was no suggestion to him which may indicate that the bed head ticket had been purposely withheld. Thus, the omission, if any, was of no consequence.

Learned counsel also submitted that the statement did not conform to the provisions of Rules 3, 4 and 8 contained in Chapter 13A of the High Court Rules and JUDGMENTs. According to the counsel, no reliance can be placed on a statement which does not meet with the conditions laid down in the rules.

Chapter 13A relates to the Dying Declarations. According to Rule 2, the "statement, if possible, be got recorded by a Judicial Magistrate". Rule 3 inter alia requires that before proceeding to record the statement, the Judicial Magistrate "shall satisfy himself that the declarant is in a fit condition to make a statement." It is further provided that "if the Medical Officer is present or his attendance can be secured without loss of time, his certificate as to the fitness of the declarant to make a statement should be obtained." It is only when "the circumstances do not permit waiting for the attendance of the medical officer" that the Judicial Magistrate can "proceed forthwith to record the dying declaration." Rule 4 requires that "the statement of the declarant should be in the form of simple narrative." Rule 8 requires the Judicial Magistrate to certify "at the conclusion of the dying declaration ... that the declarant was fit to make a statement and it contained a correct and faithfully record of the statement made by him....."

The provisions of Chapter 13A are calculated to inspire confidence in the statement of a person who is likely to die. It is with this object that the statement, if possible, is required to be recorded by a Judicial Magistrate. The Magistrate is required to satisfy himself with regard to the fitness of the person by getting a certificate from the doctor. However, these rules do not embody an absolutely mandatory provision. The variation from the directed path does not ipso facto attract the penalty of rejection of the statement. The court is under a duty to examine all the attendant circumstances before arriving at a conclusion. Stating it broadly, it may be said that the absence of a certificate from the doctor shall not be itself result in the rejection of the dying declaration. Nor would the mere nonproduction of the bed head ticket vitiate the veracity of the statement. In the present case, we find that the doctor had declared the deceased to be fit to make the statement. Furthermore, the statement itself contains an intrinsic evidence regarding the fitness of the deceased. That being so, we find no ground to reject it.

It was then contended that even if it is assumed that Smt. Raj Kumari was fit to make the statement, the allegations against Puran Chand and Haveli Ram cannot be accepted. Is it so ?

The statement of Raj Kumari has been noticed above. She acknowledges that her Jeth was not present at the time of the incident. She does not even name him. It is also borne out from the record that Kashmiri Lal has two brothers Puran Chand and Mangal. In his statement under Section 313, he had inter alia stated as under :

"I am innocent. Raj Kumari was living with me and we were separate from my father and my brother Puran. I have another brother named Mangal who is also elder to me. On the fateful morning, she was preparing tea on a kerosene stove and caught fire from that stove in the process of pinning the burner of the stove as a result of which kerosene came out of the stove and fell on the clothes of the victim. She had caught fire accidentally."

A perusal of the above statement shows that Puran and Mangal are his elder brothers. Which of the two had instigated ? The statement Ex.PP gives no indication.

It was contended on behalf of the State that Puran Chand (PW13) (as distinct from the appellantPuran Chand) had stated that Raj Kumari had told him that "she had been given beating by Haveli Ram and Puran accused." It is undoubtedly so. However, when this statement is read in entirety, it is clear that the witness had alleged that he had stated so before the police. He was confronted with his statement Ex.DB where this allegation had not been recorded. Thus, it was an improvement which was sought to be made. Similarly, even Krishan Lal, the father of the deceased had appeared as PW15. He stated that a demand of Rs. 20,000/ "was made by all the three accused." He had refused to comply with it. Thereafter, "they had started harassing Raj Kumari and also gave her beating. They snatched the ornaments of Raj Kumari and turned her out of the house. This incident occurred about 1/one and a half years prior to her death." He claims to have then filed a case in Women Crime Cell, Delhi. The complaint made by the deceased to the Women Cell is on the record.

There are three documents viz. Ex.PR, Ex.PR/1 and Ex.PL. Ex.PR is a letter dated September 20, 1990. In this letter, Raj Kumari alleged that "some days after the marriage .... husband started beating and teasing. He asked that I may bring money from my parents'' house .... My Jeth and Jethani and husband say that if I live there, they would kill me." She requested that her dowry articles may kindly be ordered to be returned so that she may earn her livelihood and bring up her children. Ex.PR/1 is a complaint dated November 21, 1990 made by the deceased to the Deputy Commissioner of Police, (Anti Dowry Cell), Police Headquarters, New Delhi. She made a complaint against her husband and his elder brother Puran Chand. She alleged that she was threatened on November 20, 1990 that if she "did not compromise in respect of .... above said complaint .... with husband and others ... she will face dire consequence." In this complaint, Puran Chand is named. The third complaint is Ex.PL. Neither Puran Chand nor Haveli Ram''s name appears in it. It does not bear any date. However, it appears to have been forwarded by Mr. K.L. Arora, Chairman of the Progressive East Delhi Citizen Council to the Deputy Commissioner of Police, Women Crime Cell, New Delhi vide letter Ex.PL/1. The typed date on this letter reads 1.1.90. However, it appears to be a typographical mistake because the other endorsements on this letter appear to be of January, 1991. It is, thus, clear that the letter Ex.PL was sent sometime prior to January, 1991. In this letter, there is no allegation against Puran Chand, the Jeth or Haveli Ram the fatherinlaw.

Thus, it is clear that the only allegation made by Raj Kumari against her JethPuran Chand was that he wanted her to compromise in respect of the complaint made by her vide Ex.PR. Otherwise, there was no allegation of any demand for dowry etc. against Puran Chand. From the oral testimony of the uncle, the father and the documentary evidence contained in these three complaints, it cannot be conclusively said that any definite allegations of threat to life had been made by Raj Kumari against Puran Chand. In fact, the testimony of these two witnesses viz. Puran Chand and Krishan Lal has not been believed on certain matters by the trial Court. On a perusal of the statements, we are satisfied that there are good reasons for doubting the correctness of their statements. To illustrate Puran Chand deposed that he had stated to the police that Raj Kumari had been given severe beating and on enquiry, she had told him that the beating "had been given by Haveli Ram and Puran accused." He was confronted with his statement Ex.DB where this fact was not recorded. Still further, in his examinationinchief, he stated that he alongwith others had gone to "Panipat on receipt of message from the guarantors and found Raj Kumari lying on the cot with burn injuries and was struggling for life." He did not end here. He went on to add that "we took her to the Civil Hospital, Panipat and from there we took her to Delhi. Her dying declaration was recorded in Civil Hospital, Panipat ..." This statement is clearly belied by the facts as established on the record. It is the admitted position that Raj Kumari had been taken to the Civil Hospital by her husband Kashmiri Lal. She had reached there at 6.50 a.m. Puran Chand could not have even been informed about the incident till then. Furthermore, in his cross examination, the witness said that he had come "to know about Raj Kumari having suffered burn injuries on the next day of occurrence from the house of Krishan Lal." Thus, there is an apparent contradiction. Such instances can be multiplied.

As for Krishan Lal, it may be mentioned that he has undoubtedly stated that the demand of Rs. 20,000/ had been made by "all the three accused." However, the name of Haveli Ram does not find mention in any one of the complaints. As for Puran Chand, there is no allegation of demand of Rs. 20,000/ against him in any one of the three complaints which were made by the deceased in the Women Crime Cell, Delhi. He also admitted that there was no demand on behalf of the accused at the time of the marriage.

On examination of the evidence, we find that Raj Kumari has not named Puran Chand in her statement Ex.PP. The oral testimony against him does not prove the charge beyond a reasonable doubt. Similar is the position regarding the documentary evidence which consists of the three letters at Ex.PR, Ex.PR/1 and Ex.PQ. In this situation, we do not think that it would be safe to hold Puran Chand guilty of the charge levelled against him.

So far as the other appellants are concerned, we find that the dying declaration made by the deceased on May 25, 1991 clearly shows that presence and participation of appellants Haveli Ram and Kashmiri Lal. Nothing has been pointed out which may persuade us to hold that they were not guilty of the offence alleged against them.

Mr. Cheema was at pains to contend that Haveli Ram was staying separately from his son. No allegation regarding any demand had been made against him in the three complaints. It is undoubtedly so. However, we find no reason to doubt the statement made by Raj Kumari soon after the occurrence. Believing that, we find no ground to differ from the finding recorded by the trial Court regarding these two appellants.

In view of the above, the appeal is partly allowed. The conviction and sentence awarded to Haveli Ram and Kashmiri Lal are affirmed.

However, appellant Puran Chand is given benefit of doubt and acquitted of the charge.

Apeal partly allowed.