Jai Pal vs State of Haryana

Jawahar Lal Gupta, J.—Jai Pal, the present appellant, was charged with having murdered Santosh--his younger brother''s wife. The Trial Court found that the charge was proved. He was sentenced to suffer imprisonment for life and to pay a fine of Rs. 500/-. Aggrieved by the judgment, he has filed the present appeal.

More than twenty years back, Santosh -- the deceased was married to Sat Narairi -- the younger brother of the appellant. Shortly after marriage, the couple had started residing at Dungerpur in the State of Rajasthan. About five or six months prior to the date of occurrence, Santosh had shifted to the place of her in-laws in village Gurgaon. It is alleged that Jai Pal was unhappy. He feared that she would claim a share in the property at Gurgaon. On the fateful day of July 29, 1992, the appellant is alleged to have sprinkled kerosene oil on Smt. Santosh in the early hours of the morning when she was asleep. He then set her on fire. She woke up. She was rushed to the Safdarjang Hospital, New Delhi. She was found to have suffered 65% burns. A.S.I. Budhi Parkash of Delhi Police, who later appeared as P.W. 4, recorded her statement. It is Ex. PF. After more than two weeks, on August 27,1992, Santosh succumbed to her injuries. Inquest report Ex. PD/2 was prepared Dr. G.K. Chobey conducted the post-mortem examination.

A month later, on September 16, 1992, Rattan Lal, the father of the deceased lodged a written report with the police. It is Ex. PA. The F.I.R. was recorded. After completion of the investigation/the challan was filed in Court.

The prosecution rested its case on the testimony of Rattan Lai (P.W. 1) --the father of the deceased, Mehar Chand (P.W. 2)--the brother of the deceased, Dr. G.K. Chobey (P.W. 3), A.S.I. Budhi Parkash (P.W, 4), Mul Chand Punia (P.W. 5), Dr. Rohit Nayyar (P.W. 6), A.S.I. Jai Kishan (P.W. 7) and Asha Ram Meena (P.W.8).

The appellant had denied the charges. He also produced his brother Sat Narain, the husband of the deceased as D.W. 1.

On examination of the evidence, the learned Additional Sessions Judge, Gurgaon found that the dying declaration made by the deceased was duly corroborated by the medical evidence. Thus, the charge against the appellant was held to have been proved. Aggrieved by the judgment, Jai Pal has filed the present appeal.

Counsel for the parties have been heard.

The short question that falls for consideration is -- Did Jai Pal sprinkle kerosene oil on Smt. Santosh and set her on fire ?

The first witness produced by the posecution is Rattan Lal, the father of the deceased. He has stated that Smt. Santosh was married to Sat Narain about 18 years ago. She was residing in Rajasthan. About five or six months prior to the incident, she had shifted to Gurgaon and started residing with the accused and her father-in-law. She had "no dispute with the accused or others and in the early morning of 29.7.1992, she caught fire and died on account of burn injuries". He goes on to emphatically add that "neither accused Jai Palnor anybody else had set her afire. I never made over any written complaint Ex. PA alleging the accused Jai Pal had set her afire. The police obtained my thumb impressions on some blank papers". Not surprisingly, the witness was declared hostile. However, nothing worthwhile was brought out. He categorically denied the suggestion that he had "compromised with the accused and for that reason'''' was deposing falsely. When cross-examined by the defence, he stated categorically that his daughter "was residing happily with her husband as well as in-laws and they never maltreated/harassed her on any account".

Not only the father but even the brother of the deceased was examined. He appeared as P.W. 2. He stated that the deceased had never told the family that the accused or others ever maltreated or harassed her. There was no dispute about any property. She had died "on account of burn injuries". He was not in a position to tell "whether she caught fire accidentally or somebody had set her afire". He further states that "the accused who is the elder brother of her husband did not sprinkle oil on her and never set her afire." He was cross-examined by the prosecution. He denied the suggestion that he had made any statement Ex. PB or that he was deposing falsely on account of any compromise.

The two witnesses are the closest relations of the deceased. The father and the brother would have never forgiven the real culprit. They have categorically stated that Jail Pal had not done anything to harm the deceased. Can the appellant be still held guilty? It was contended on behalf of the prosecution that the statement made by the deceased was conclusive evidence against the appellant and that the conviction should be sustained on the basis thereof.

We have perused the statement Ex. PF. It was recorded by A.S.I. Budhi Parkash who appeared as P.W. 4. He claims that he had moved an application Ex. PE to the Doctor so as to ascertain the physical condition of Smt. Santosh. On her having been declared fit, he had recorded her statement. He stated that the statement was read over to her and she had thumb-marked it in token of its correctness.

On a perusal of the statement, it appears that the deceased had pointed an, accusing finger towards the appellant. However, this statement leaves many gaps which cannot be plugged.

Admittedly, the statement was recorded on July 29,1992. No Daily Diary report was made about this statement. No F.I.R. was recorded. The doctor who is alleged to have declared that Smt. Santosh was fit to make the statement, was not produced. The statement is not thumb-marked. It only appears to have been toe-marked. Still further, the deceased had remained alive till August 17,1992. There was sufficient time for the statement to be recorded by a Magistrate or even a doctor. Not even an attempt was made in that behalf. Taking these facts cumulatively, it appears difficult to accept this statement or to base the conviction of the appellant solely thereon.

It is true that a dying declaration recorded by a police officer can be looked into by the Court. It is not the mandate of law that the police officer cannot record a dying declaration. However, the Court shall normally expect the Magistrate or the doctor to record the statement. Still further, it is only when the absence of a Magistrate or a doctor is satisfactorily explained that the Court may base its decision on the statement recorded by a police officer. In the present case, there is no explanation whatsoever for the absence of a Magistrate or the doctor.

Taking the facts cumulatively, we are of the opinion that it would not be safe to base the conviction solely on the statement recorded by A.S.I. Budhi Ram. This is all the more so in view of the fact that the father and the brother of the deceased have clearly and categorically exculpated the appellant.

Resultantly, we accept the appeal, set aside the conviction and acquit the appellant.