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Judgment
I.S. Tiwana, J.
The appellant who was tried for alternative offences u/s Sections 302 and 306, Indian Penal Code, by the Additional Sessions Judge, Karnal, has, however, been found guilty of the latter offence i.e. for abetting his wife Saroj alias Bholi to commit suicide and has been sentenced to seven years'' rigorous imprisonment. Facts found against him by the trial Court are as follows:
The deceased was the daughter of Hargobind PW 5 and had been married to the appellant just three months prior to the date of occurrence, i.e., 7th March, 1985. At that time, the appellant was living at Hansi. Later, he shifted to Panipat, i. e., the place where PW 5 lived and carried on business as an ice cream vendor. During the interregnum of three months, i.e., the period for which their marital relationship lasted, she visited her father''s house only once. At that time she told him that the appellant was not satisfied with the dowry that had been given to her and wanted more money for his purposes. The father expressed his inability to provide her any more funds and asked her to explain the same to the appellant. Again, on Lohri of that year, i.e., 1985, when Hargobind went to see the deceased at her place she informed him about the appellant''s demand for more money. She also disclosed that she was being harassed by the appellant on that account. Hargobind explained his helplessness to bot of them, i.e. Saroj deceased and the appelant.
On 7th March, 1985 at about 6.00 p.m., Manoj Kumar PW 6 who was a brother of the deceased and was about five years of age, came running to his father, i.e., Hargobind and told him that Saroj was burnt. On hearing this, Hargobind rushed to his daughter''s house and on reaching there, found that the door was closed from inside and smoke was coming out of the room which was occupied by the couple. He not only raised a hue and cry there but also pushed open the door and found that his soninlaw and the deceased were in that room and the latter''s cloths were on fire. With the help of the people who had collected there he extinguished the fire by throwing earth upon her. By that time, Saroj had become unconscious. She, however, was immediately removed to Panipat hospital. Since her condition was found to be serious, she was referred to Medical College & Hospital Rohtak. She reached that hospital at about 11.10 p.m. She was medicolegally examined by Dr. Subhodh Nawal PW 17. The said doctor also sent ruqa Ex. PL to the Incharge of the Police Post in that hospital to inform him about the arrival of the injured in the hospital. She, however, expired at about 6.00 a.m. on 8th March, 1985. On account of this, another ruqa Ex. PL/2 was sent to the Police informing them about the death of Saroj. Sub Inspector Partap Singh PW 15 reached the hospital and recorded statement (Ex. PD) of Hargobind which ultimately formed basis of the formal FIR Ex. PD/2 registered against the appellant in Police Station City, Panipat. The dead body of Saroj was sent for postmortem after the preparation of inquest report Ex. PA/1. The autopsy was conducted by Dr. D.K. Sharma who prepared his report Ex. PA. On 9th March, 1985, Sub Inspector Partap Singh visited the spot and examined the room wherein the occurrence had taken place. From there he recovered an aluminium dibba (tin) Ex. P 1, one partially burnt chadar Ex. P 2 (which smelt of kerosene oil), one piece of partially burnt towel, one piece of partially burnt bra and one piece of partially burnt salwar. All these clothes also smelt of kerosene oil. A piece of cloth in the form of a hand ball was also recovered from the spot. Two bottles Ex. P 3 and P 4, containing small quantities of kerosene oil, were also taken into possession by the police. All these articles were sealed into separate parcels and were taken into possession vide memo Ex. PE. Some earth soaked with kerosene oil was also taken into possession vide recovery memo Ex. PE. In due course of time, all these sealed parcels and the sealed bottles were sent to the Forensic Science Laboratory, Madhuban, for purposes of examination. Report Ex. P 3 received from there disclosed that but for the residue kerosene oil in the two bottles Ex. P 3 and P 4, no kerosene oil could be detected in the rest of the material sent there. Regarding the cloth in the form of a handball, the report was that though there was some saliva on that ball yet there was no vomit. As a result of the investigation that followed, the appellant was sent up for trial which ended in his conviction. as already indicated in the opening part of the judgment.
The appellant too was medically examined by Dr. R.M. Singh PW 16 on 10th March, 1985, on police request, and he found that the appellant bad suffered as many as 11 burn injuries on his hand which, according to his report were within a duration of two to four days.
At the trial, he raised the following plea by way of his defence:
"On 731985 I and Saroj took our meals at about 1.00/1.15 PM jointly. Thereafter I went to sleep. At about 4.00/4.30 PM I heard the cries of Santosh Kumari. I got up and went inside the room and found that Santosh Kumari was burning from her head downwards. Her hair on the left side of her head were burnt. I tried to put off the fire with my hands but was unable to do so. I sustained burn injuries in that process. I raised alarm. I picked up a Khes and started extinguishing the fire with that Khes but that fire could not be put out. Her clothes were completely burnt. Manphool landlord came. He brought earth from the katcha portion of his house. Manphool threw earth on the burning Santosh. 78 more persons collected there. Police also came. A matador had also come and was standing outside my room. I do not know who had brought it. I brought Santosh to the Civil Hospital, Panipat. On my enquiry she told me that she caught fire accidentally from the stove. Panipat hospital authorities advised us to take her to Rohtak Medical College Hospital. We took her to Rohtak hospital. On the way I enquired from Saroj alias Santosh as to where we were going. When we were 10 kilometers short of Rohtak she enquired from me as to how far Rohtak was. At about 11.00/11.15 PM, she was got admitted in Rohtak hospital. She asked for tea at about 2.00/2.30. A.M on 831985. I enquired from the medical officer if tea should be served to her. He advised us not to give her tea. At about 5.30/6.00 AM on 831985 she died. Her post mortem examination was done on 931985. We took her dead body to Hansi for cremation. I immediately rushed back to Panipat by bus. I went to the Police Station. The police did not ask me anything but on the next day, that is on 10.3.1985 I was beaten by the police. On 1131985 the police sought my remand from the court and thereafter on 1431935 1 was sent to the judicial lockup.
I never demanded any money from Santosh Kumari or from her father or uncle through her.
For framing the charge u/s 302, I.P.C., against the appellant, the prosecution entirely depended upon the evidence of Manoj Kumar PW 9 who, stated that during those days he used to live with his sister and jija i.e., the appellant. On the date of the incident, Som Kumar, appellant, put a cloth in the mouth of his sister Bholi and after tying her handset and sprinkling keroseneoil on her, set her on fire with a match box which he took out of his pocket. On seeing this, he ran to his father Hargobind PW 5 to call him and informed him of the incident. The trial Court, however, disbelieved this version with the finding that there was no opportunity for him to have seen the accused sprinkling kerosene oil on Santosh Kumari that was another name given to her after marriage), gagging her mouth and tying her hands." The Court also found that the above noted account given by this witness did not fit in with the rest of the evidence and the circumstances of the case. It, therefore, concluded that the evidence available on the file does not bring the ease within the ambit of Section 302 I.P.C."
Having heard the learned counsel for the parties at some length in the light of the evidence on record I find that there was hardly any justification. with the trial Court to record a conviction of the appellant u/s 306 IPC even. The Court appears to have been swayed more by the fact that a newly married bride had been burnt than by a judicial analysis of the evidence on record. For recording this conviction the Court has primarily depended upon the statements of Hargobind PW 5, father of the deceased; Manphool PW 6, the landlord of the appellant; Manoj Kumar PW 9, brotherin law of the appellant Hans Raj and Babu Ram PWs 10 and 11, respectively, who claim to have extinguished the fire which burnt the deceased to death. On scrutiny the statements of these witnesses I find that these support the, defence plea in material particulars rather than proving the guilt of the appellant. As has been pointed out earlier, the crux of the defence plea was that it was not a case of suicide at all and was rather a case of accidental burning. This plea is duty supported by the evidence of Dr. Parmod Kumar Garg PW 3, Registrar, Department of Surgery, Medical College Hospital, Rohtak, who was the first to attend to the deceased and under whose supervision the case history Ex. PB was prepared by his House Surgeon, Dr. C.D. Sharma, categorically stated that the deceased was under his treatment and at the time of her admission to the hospital she was in a fit condition to make a statement but slowly her condition started deteriorating. The case history, as recorded in the bed head ticket Ex. PB, was recorded by Dr. C.D. Sharma in his presence. As per this record, the deceased suffered accidental bums from the stove (kerosene) while preparing tea at about 4.00 p.m. on 7th March, 1985. The trial court has discarded this evidence for wholly insufficient reasons. In this I regard, the Court opined that firstly Dr. C.D. Sharma who had actually recorded the case history had not entered the witnessbox, and, secondly, it appeared that at the time the same was recorded, Santosh Kumari was not in a fit condition to make a statement because the contents thereof stand belied even from the history given by the accused in the Court. According to the accused and had been thrown on her when she had caught fire but in the history given in Ex. PB if is mentioned that there was no history of water pouring wrapping of any blanket or throwing of sand on the body of Santosh Kumari. In the column of General Appearance, she was shown to be delirious as was found by Dr. Subodh Newal also. Her pulse was noted at 88 per minute in Ex. PB while it was not found palpable by Dr.Subodh Nawal. Her blood pressure was recorded as 100/70 in Ex. PB while Dr. Subodh Nawal had stated that it was not recordable. It was a case of cent per cent burns and if she was in a condition to make a statement, there was no bar on her having made such a statement in the Civil Hospital, Panipat much before she was removed to the Medical College Hospital, Rohtak." In view of this, no credence was attached to Ex. PB.
While in the witnessbox, Dr. Subodh Nawal PW 17 conceded that he had not mentioned in his medico legal report that Santosh Kumari (deceased) was unfit to make a statement or that she was unconscious. He, however, had mentioned that she was delirious and was not responding questions. He also accepted that after examining the patient in the casualty department of the hospital he did not attend to her and she was looked after by the other medical officers. He accepted that in Ex. PB, the case history had been recorded in the hand of Dr. C.D. Sharma who was working under Dr. Parmod Kumar Garg PW 3. He also accepted that as per the column "General appearance" in Ex. PB, the medical officer attending upon her had recorded, "responding to verbal stimuli", meaning thereby responding to verbal queries. I, therefore, find nothing to prefer the evidence of Dr. Subodh Kumar Nawal PW 17 to that of Dr. Parmod Kumar Garg PW 3. There is absolutely nothing in the evidence of Dr. Parmod Kumar Garg to raise any suspicion that he was ill disposed towards the prosecution end was biased in favour of the appellant. To me, he appears to be a disinterested and truthful witness. Thus, I choose to rely on his evidence.
Let us now analyse the ocular version of the prosecution. PW Manoj Kumar of the deceased who was the first to inform his father about the occurrence, has stated so, "....I used to live with my sister Saroj and my Jija Som Kumar (the appellant used to sleep with my sister and Jija All three of us used to sleep on the same cot. My Jija and my sister used to take food, in one Thali and they also used to serve food from that Thali. My Jija and ray sister used to love me, and my Jija used to love my sister Bholi. On the day of this occurrence I, my Jija and my sister had taken our lunch in one Thali. My sister used to cook meals in the room itself. There is a verandah outside that room. My Jija slept on a cot in that verandah and I started playing in the courtyard. We used to take tea in the evening together. My younger sister (deceased being the younger of the two sisters) had gone to bring the kerosene oil. That kerosene oil was put in the stove which was lighted for preparation of the tea. She cried while preparing tea and she cried that she had caught fire from the stove." It was then that he informed his father Hargobind PW 5 about the occurrence. As per letter''s statement, all that he hall conveyed was, He told me that Bholi had been burnt.
This is the statement of Hargobind PW 5, the father of the deceased :
"About ten days before she died, her husband had taken house on rent near the Police Post, Tehsil Camp, Panipat, and she and her husband started living therein. On the day of Phag in 1985 at about 5.00/5.15 PM my son Manoj Kumar aged about five years came running to me He told me that Bholi had been burnt..........I did not put off the fire. I brought her body outside that room and took her in a vehicle to Civil Hospital, Panipat. The accused had accompanied us to the hospital. The Medical Officer of Panipat referred her case to Rohtak Medical College and, therefore, took her to Rohtak, Besides me and my daughter, the accused and his sister had gone to Rohtak. We reached Rohtak Hospital at about 11.00/11.30 PM. With our consent, the dead body was taken to Hansi for cremation, I did not go to Hansi myself but came to Panipat." About the recoveries from the spot he deposed,
"One stove (kerosene) was also recovered from that place..... My daughter Saroj had studied up to 5th Class. She could write letters in Hindi . . . . . . . I had been receiving letters from Saroj while she was in her matrimonial home and those letters were very disappointing and narrated her pitiable condition.
"No such letter, however, has been produced on record. The witness further deposed :
"I had got the room from Manphool for the accused.........
Parveen is my elder daughter. During their stay in Panipat, the accused and Saroj had been visiting Parveen and my house. . . . . . . .. . . . The house of Parveen is 200 yards from the house which had been taken on rent by the aroused.
The accused and my daughter used to live and cook their meals in that Very room. When Manoj came to me, he used the words "Papa, Bholi jal gai hai". Fingers of the both hands of the accused were burnt . . . Som Kumar Accused had been attending on Saroj. I do not know if my daughter had told the medical officer in Rohtak that she was preparing tea when her clothe caught fire was outside the room. Som Kumar was present when the Thanedar was recording my statement. Som Kumar was present even at the time of post mortem examination on 9th March, 1985".
Next is the statement of Manphlool PW 6, the landlord of the accused and the deceased. After stating about the details of his renting out the room to the appellant and the rest of the version of the prosecution he admitted :
"During these three/four days, the accused and his wife lived in that room. Hargobind and his children had been visiting them. my family was also living in that house. I was at a distance of 10/15 yards from the room when I heard the shrieks. The door opened as I pushed it. The accused was trying to put out the fire by waving a chadar. I did not notice if he burnt his finger in that process. I cannot say if she was preparing tea on the stove and her clothes caught fire. When I opened the door the stove was not burning. It was a pressure stove. That stove was also taken into possession by the police.
"Hans Raj PW 10 is the brother of Hargobind PW 5 and uncle of the deceased. He deposed that after the marriage Bholi came to him in Delhi and told him that her husband was troubling her as he was demanding Rs. 4,000/5,000 for his purposes. He, however, admitted in crossexamination, "I am living in Jhuggis and I am hardly able to make my both ends meet.
PW 11 is Babu Ram and owned a factory just at a distance of 3 metres from the house of Manphool PW. He stated that on the day of occurrence, after hearing the alarm he rushed towards that house. He was the first to reach there. He saw "smoke coming out from one of the rooms of which one shutter of the door was open." I went inside that room. The accused was there in that room. One female completely naked was lying in that room, and it was the body of Saroj. The body was on fire and the accused was trying to put off the fire with his hands." Though this witness was got declared hostile by the Police Prosecutor yet nothing useful to belie the abovenoted version of his was extracted during his crossxamination.
It is, thus, evident that the abovenoted statements of these witnesses on the basis of which, as already indicated, the trial court has recorded the conviction of the appellant supports the defence plea in its material particulars. The conduct of the appellant as disclosed by these statements is wholly consistent with that of an innocent husband whose wife has died due to accidental burning. No immediate motive on the part of the appellant to perpetrate the crime has either been alleged or proved on record. There is no convincing evidence available on record to show that he had ever pressurised or coerced the deceased on account of the inadequacy of the dowry she had brought or his unlawful demands for money. As per the statement of Manoj Kumar PW, the brother of the deceased, and that of Hargobind PW, her father, the relations between the appellant and the deceased were absolutely cordial even up to the time of the occurrence. I am, therefore, satisfied that the innocence of the appellant is well established from the record and the judgment under appeal appears to be one sided. To say a word about the fairness of the investigation, it may be pointed out here that the investigator did not choose to produce or prove the recovery of the stove from the spot through Hargobind PW 5 and Manphool PW 6 had positively stated that the stove was taken into possession by the investigator when the latter visited the spot on 9th March, 1985.
For the foregoing reasons, while setting aside the judgment under appeal, I acquit the appellant of the charge levelled against him. He is on bail. His bail bonds are discharged.