State of Haryana vs Suresh and others

Harphul Singh Brar, J.

Accused Suresh son of Moji Ram, Ram Bhagat son of Nihar Singh and Ajmer Singh son of Kapur Singh (now respondents in this appeal filed by the State of Haryana) were charged under Sections 307/34 I.P.C. on the basis of statement of Ram Dhan P.W. 5 resident of Jind, who happens to be the father of Kamla P.W. 8, recorded in the Police Station City, Jind by Inspector Harbans Lal P.W. 11 at 3.00 a.m. on 22.11.1989. Formal F.I.R. Ex. PE was recorded on 22.11.1989 at 3.20 a.m.

Ram Dhan had got recorded in his statement before Inspector Harbans Lal, P.W. 11 that he had 3 sons and 3 daughters. His elder daughter Kamla Devi was married with Ram Kumar resident of Bhupinder Nagar. Ram Kumar had died about 8 years ago. Kamla had one daughter and one son namely Rajesh, her daughter Smt. Bir Bati was married. On 22.11.1989 at about 2 a.m., his grandson Rajesh son of his daughter Kamla accompanied with Azad, father''s sister''s son of Rajesh, came to him and told him that at about 10 p.m. one Suresh son of Moti Ram, Ajmer son of Kapur Singh and Ram Bhagat son of Nihar Singh, Jat by caste, resident of village Pangal, P.S. Barwala, (Hissar) came to their house in a Maruti car. All the three of them sat in their baithak. His mother knew Suresh. Azad and he (Rajesh) went to watch a videomovie in the Mohalla. They had returned at 11.30 p.m. and gone to sleep in the other room. At about 1.00 a.m. on 22.11.1989, on hearing the rolla of his mother Kamla saying, "Jala di, Jala di, bachao" (Burnt, burnt, save), Azad and he had gone to the baithak and found that Suresh was gagging the mouth of his mother and Ajmer and Ram Bhagat had caught hold of her mother Kamla by her hands and her clothes were set on fire. As soon as they reached, all the three of them fled away in the car. Suresh, Ajmer and Ram Bhagat had set her on fire after sprinkling oil in order to kill her over the money transaction and she was lying in an injured condition. On receipt of this information he had gone to Kamla''s house and found her lying in an injured condition. She was removed to Civil Hospital, Jind for treatment. After getting her admitted there, he had come to lodge a report.

After recording the F.I.R. Ex. PE, Inspector Harbans Lal went to the Civil Hospital, Jind where he moved an application Ex. PW. 11/B on which Dr. R.P. Taneja, P.W. 3, who had medicolegally examined Kamla, made his endorsement Ex. P.W. 3/A to the effect that Kamla was not in a fit condition to make any statement and that she was being referred to Medical College Hospital, Rohtak. Rejesh and Azad were also present in the hospital and according to Inspector Harbans Lal, their statements under Section 161 Cr.P.C. were recorded in the hospital. Kamla was got admitted in General Hospital, Jind at 3.10 a.m. and Dr. R.P. Taneja had medicolegally examined her at 3.30 a.m. vide M.L.R. Ex. PD. He found superficial to deep burns present over the face, neck, chest, abdomen, back and upper parts of both thighs and perinium and he also found blisters here and there over the body of Kamla. From General Hospital, Jind, Kamla was removed to Medical College Hospital, Rohtak and on receipt of Ruqa Ex. PA from the Incharge of Ward No. 5, A.S.I. Prem Singh P.W. 1, Incharge of the Police Post, Medical College Hospital, Rohtak, went to ward No. 5 and moved an application Ex. P.W. 1/A, and enquired about the condition of the patient as to whether she was fit to make her statement. The doctorincharge, vide his endorsement Ex. PB, reported that the patient was unfit for making a statement at 11.40 a.m. On that very application, at a later time (not disclosed in the application or endorsement), Medical Officer vide endorsement Ex. PB/1, declared Kamla fit for making statement. Thereupon A.S.I. Prem Singh moved one application to the C.J.M., Rohtak for recording dying declaration of Kamla. That application was marked to Duty Magistrate. P.W. 6 Subash Goyal, Judicial Magistrate Ist Class, Rohtak went to ward No. 5 of Medical College Hospital, Rohtak and he made request Ex. P.W. 6/A to the Medical Officer to ascertain whether Kamla was fit to make any statement. Medical Officer gave his opinion P.W. 6/B declaring Kamla fit for making statement and thereupon the Judicial Magistrate Ist Class recorded the statement Ex.P.G. of Kamla strictly according to what was stated by her on oath and before doing so, Bir Mati and other relatives attending on Kamla were asked to leave the patient alone. The statement was read over to Kamla and in token of correctness of her statement, she had put her right hand thumbimpression on the same. She remained conscious throughout the period her statement was recorded and in this regard, endorsement Ex. P.W. 6/D was made by the Magistrate. On an application, A.S.I. Prem Singh was allowed to inspect and prepare the copy of statement of Kamla.

On 23.11.1989, Inspector Harbans Lal inspected the spot and on the demarcation of the place of occurrence by Rajesh he prepared the visual site plan Ex. P.W. 11/B. From the spot, he took into possession one halfburnt quilt Ex.P. 1, one half burnt pillow Ex. P. 2, one half burnt shawl Ex. P. 3 and an empty canny of black oil Ex. PR under memo Ex. PH attested by Rajesh and Harjit Singh Constable. The quilt, pillow and shawl were sealed in one parcel with his seal HS and canny was sealed separately. From recovery memo Ex. PH, it appears that some small pieces of burnt cloth were also taken into possession.

Kamla got treatment from Dr. Pankaj Mutneja P.W. 2 among others. Burnt condition of Kamla was 63.5%. She remained admitted in Medical College Hospital, Rohtak from where she was discharged on 5.3.1990.

The three accused respondents were produced in Police Station City, Jind by Hoshiar Singh on 30.11.1989 and they were arrested by Inspector Harbans Lal and one Maruti car bearing registration No. DAQ4017 was also produced in the police station by Ajmer Singh and that was also taken into possession, vide memo Ex. P.W. 11/C.

On completion of investigation, challan was put in the Court and the case was committed to the Sessions Court by the C.J.M., Jind, as already stated above, the accused respondents were charged under Sections 307/34 I.P.C.

In their statements recorded under Section 313 Cr.P.C., the three accused claimed innocence and disclosed that they had a dispute with Dariya regarding payment of money for cattleshed which he had purchased from them and that Dariya got them falsely implicated in the case.

After hearing the Public Prosecutor and the counsel for the accused, the learned Additional Sessions Judge, Jind acquitted all the three accused by giving them benefit of doubt. Hence this appeal.

It is well settled by the authoritative pronouncements of the Apex Court that an appeal against acquittal is a rehearing of the case. The High Court, however, in such cases, has to bear in mind that the case of an accused person starts with the initial presumption of innocence and this presumption, if not reinforced is in no way weakened by his acquittal by the trial judge. Further the High Court should carefully examine each and every reason given by the trial judge in support of the acquittal and has to effectively repel it before it can convert the acquittal into a conviction. Thus we proceed to examine the reasons given by the learned Additional Sessions Judge in support of the conclusions arrived at by him. Broadly he has given the following reasons in acquitting the accused :

Delay in lodging the First Information Report.

As accused were unknown to the complainants, their test identification parade was thus necessary. In the absence of test identification parade the prosecution case becomes doubtful.

Absence of injuries on the body of the accused as according to the prosecution story one of the accused had gagged the mouth of the injured and the other two had caught hold of her before oil was sprinkled on her and her body was set on fire.

We find force in these reasonings of the learned Additional Sessions Judge that there is an unexplained delay in lodging the First Information Report and further submitting it to the Ilaqa Magistrate. Occurrence is alleged to have taken place on 22.11.1989 at 1.00 a.m. i.e. the intervening night of 21/22.11.1989 in the house of Kamla injured (P.W. 8) at Jind. Formal FIR, Ex.PE, was recorded by Harbans Lal, S.I. (P.W. 11) in the Police Station, Jind, which is at a distance of about two kilometres from the place of occurrence on the statement of Ram Dhan (P.W. 5), father of the injured Kamla (P.W. 8) and the special report reached the Ilaqa Magistrate, Jind on 23.11.1989 i.e. on the next day at 1.30 p.m. No explanation is forthcoming from the prosecution as to why copy of the FIR was not delivered at the residence of the Chief Judicial Magistrate, Jind within an hour or so after its registration at 3.20 a.m. on the same day when Police Station City, Jind, where FIR was recorded and the Court of the Chief Judicial Magistrate as well as his residence are in Jind town itself. It has come in the statement of P.W. 8, Kamla, P.W. 5, Ram Dhan father of Kamla injured and P.W. 9, Rajesh son of Kamla that the names of the three accused were never told to Ram Dhan or to the police at any time before 3.20 a.m. on 22.11.1998 when the FIR is alleged to have been recorded. It is again a fact that FIR was recorded on the statement of Ram Dhan (P.W. 5) who was not the eye witness of the occurrence. Rajesh (P.W. 9) and Azad the other eye witness were very much present in the hospital, Jind but the police did not like to register the case on the statements of any one of them. P.W. 5, Ram Dhan, has stated at the trial that Rajesh and Azad did not tell him the parentage and residence of Suresh and names and parentage and residence of the other two accused. Smt. Kamla had allegedly become unconscious after she was set on fire and she was not in a position to tell anything to anybody much less the names of the accused. It thus seems that the FIR did not come into existence at the time when it is shown to have been lodged. P.W. 5, Ram Dhan, also belies the claim of the prosecution that FIR was recorded at 3.20 a.m. According to the copy of the MLR, Ex. PD, Smt. Kamla was brought to hospital at 3.10 a.m. on 22.11.1989. P.W. 5, Ram Dhan has stated at the trial that after bringing Kamla in the hospital, he remained with her for one hour and thirty minutes before going to the police station as during that period he had brought the Chief Medical Officer from his residence. Thus in these circumstances it was not possible for Ram Dhan (P.W. 5) to reach the police station which is at a distance of about 2 kilometres from the place of occurrence before 4.45 a.m. and when Rajesh and Azad have not given the full description of Suresh and even not told the names of other two accused to Ram Dhan how it was possible for Ram Dhan to disclose their names to the police. Rajesh (P.W. 9) claims at the trial that the names of the two accused Ram Bhagat and Ajmer Singh were disclosed to him by Suresh when he was caught by them but from the evidence on record it is impossible to believe that Suresh was ever caught by Rajesh and Azad or by his neighbours. Rajesh has stated that Suresh was caught hold of by him and Azad at the spot and was handed over to the neighbourers, but when he came back Suresh was not there. This factual position cannot be believed if Suresh had been caught at the spot by Rajesh and Azad then they would not have allowed him to escape and if they had even handed him over to the neighbourers, it was not possible for Suresh to escape from their clutches rather they would have handed him over to the police or would have kept him with them and no such neighbour has been produced by the prosecution to testify the statement made by Rajesh at the trial. It thus seems to be very clear that FIR was also lodged by the police not at the time which has been shown by the prosecution. In these circumstances, the delay in lodging the FIR and further sending it to the Ilaqa Magistrate on the next day at 1.35 p.m. is fatal to the prosecution case.

Rajesh (P.W. 9) and Kamla (P.W. 8), the alleged two eye witnesses have stated that they saw the accused for the first time in the court after the occurrence. Azad the other alleged eye witness has not been examined. These two witnesses have only given the name of Suresh but they have not named the other two accused. Even Kamla in her statement Ex. PG before the Magistrate (P.W. 6) has stated that when Suresh asked her that he would sleep in her house, she had refused on the ground that she did not know him. In the same statement she has narrated that two more persons accompanying Suresh were also unknown to her. The two other witnesses, Rajesh and Azad who had not been examined did not know the other two accused earlier. Even they did not know the parentage and residence of Suresh accused. Thus merely knowing the name of Suresh is not sufficient to identify the accused Suresh as there can be many persons of the same name. Of course, Suresh was a Sarpanch, Lambardar or any other important personality of the village. Ram Dhan (P.W. 5), on whose statement the FIR was lodged was not an eye witness of the occurrence. He did not give full description of the three accused and even names of the other accused were not told to him by Suresh and Azad before he actually got the case registered. In view of our discussion above, test identification parade was necessary in this case in order to establish the identity of the accused persons. Not holding the test identification parade has thus also damaged the prosecution story. If any ruling is needed in this case, the following are the ones :

1979 SCC (Crl.) 621 (Kanan and others v. State of Kerala).

1988(2) Recent Criminal Reports 58 (Jaimal Singh v. State of Haryana ).

In these circumstances, the trial court was right in acquitting the accused by giving them benefit of doubt.

According to the prosecution story Suresh accused had closed the mouth of the injured Kamla with his hands and the other two accused had caught hold of her by hands. The accused then put the black oil contained in a Kani on her and then set her on fire. But no injury was found on the person of the accused when they were arrested by the police on 30.11.1989 as admitted by P.W. 11, Harbans Lal, S.I. Dr. R.P. Taneja (P.W. 3) has stated that in case a person on fire is caught or secured by another person then that person is also likely to have burns on his hands and generally burn marks remain present on the body for about two weeks. At the trial Rajesh (P.W. 9) tried to make improvements in his statement by saying that Suresh had closed the mouth of Smt. Kamla with a quilt which he was holding in his hands but he did not state so before the police and he did not state so to Ram Dhan (P.W. 5) also who has lodged the FIR. Had these three accused or any one burnt Kamla in the manner alleged by the prosecution they were bound to have injuries on their hands. We are of the opinion that the trial Court had rightly held that absence of injuries on the hands of the accused also points towards innocence.

A few other points may be noted which point towards the innocence of the accused persons. The statements of the prosecution witnesses are discrepant and contradictory and they have made lot of improvements and embellishments in their statements at the trial. P.W. 8, Kamla, had stated at the trial that she permitted three accused to remain in the baithak and she went inside her room. Whereas in her statement, Ex. P.G., made before the Judicial Magistrate Ist Class (P.W. 6) on the day of occurrence at 7.05 p.m. she had stated that Suresh asked her that he would sleep in the house but she refused on the ground that she did not know him. Again Kamla (P.W. 8) had stated in her examinationinchief that Suresh and two more persons came to her house but in her statement, Ex.P.G., before the Magistrate (P.W. 6) that one person whose name was Suresh had come with her Devar (husband''s younger brother) Dariya. To find out as to how she has very easily made improvements in her statement at the trial, it would be necessary to reproduce the following lines :

"On that day Dariya did not come to my home with Suresh. I did not tell the Magistrate that Suresh had come to my home with Dariya on the fateful night (confronted with portion A to A1 of Ex. PG where it is so recorded that Dariya came with Suresh). I told the Magistrate that after permitting the accused to stay in my baithak I went to my home and slept there and at 12.00 or 1.00 night Suresh thumped the door of my room and that the accused dragged me to the baithak (not so recorded in Ex.PG). I did not tell the Magistrate that the accused violated my modesty (in Ex. PG only this much has been written that the accused wanted to violate her modesty and the witness did not allow). I told the Magistrate that Rajesh and Azad had gone to watch a Video film (not so recorded in Ex. PG). I told the Magistrate that Suresh closed my mouth with his hands and the other accused caught me (not so recorded in Ex.PG). I did not make statement before the Magistrate that I did not permit Suresh to stay at my home saying that I did not know him (confronted with portionB to B1 of Ex.PG where it has been so recorded)."

Relevant lines of the statement made by P.W. 5, Ram Dhan, at the trial are also reproduced to show the improvements and embellishments made by him at the trial :

"I had told the police that Rajesh and Azad told me that they had caught Suresh but he got himself released from them and ran away (not so recorded in Ex. PE)".

The relevant lines of the statement made by Rajesh (P.W. 9) at the trial are also reproduced to show the improvements and embellishments made by him at the trial :

"I told the police that Suresh had told the names of other two accused when we caught him and threatened him (not so recorded in Ex.PA). I told the police that Suresh had closed the mouth of my mother with the quilt (not so recorded in Ex. PA). I told the police that Azad put bucketful water on my mother (not so recorded in Ex. PA). I told the police that the three accused had come by a Maruti car and two of them escaped by that car (not so recorded in Ex. PA). I told the police that before going to the house of my maternal grandfather we had handed over the accused Suresh to our neighbours but by the time we came back, he had also run away (not so recorded in Ex. PA). I do not recollect whether I told the police that Suresh and other accused had demanded money from my mother for purchasing liquor (not so recorded in Ex. PA)."

Apart from that there are other few facts which belie the prosecution story.

P.W. 8, Kamla had stated before the Magistrate in her statement, Ex.PG, that on the night of occurrence Suresh accused had come with her Devar (husband''s younger brother) Dariya but that Dariya referred to by Kamla has neither been produced by the prosecution nor has been questioned by the police about the occurrence at all.

It is improbable that a woman shall allow three strangers to stay at her house especially when they were in a drunken condition. A woman shall not normally open her door at night time when knocked at by a stranger until or unless there is already some relationship between them. It is not understandable as to how Rajesh (P.W. 9) son of Kamla and his friend Azad reached the baithak, when according to Kamla the door of the baithak which opens towards the street had been bolted from inside.

The quilt, pillow and shawl were found half burnt in the baithak without any burn mark on the floor or smoke marking on the ceiling. Dr. Taneja (P.W. 3) has specifically stated that Smt. Kamla had no cloth on her body when she was brought in the hospital. Though P.W. 5, Ram Dhan, has stated that the clothes on the person of Kamla (P.W. 8) had been burnt and they had been sticking on her body but the Medical Officer contradicted his statement by deposing at the trial that he did not find any burnt cloth sticking to the body of Smt. Kamla. Copy of MLR, Ex. PD, and pictorial diagram, Ex. PD/1 clearly show that the legs of Kamla were not burnt. In these circumstances, it is clear that the clothes should have been on her body but it was not found by the Medical Officer and there is no evidence on the file that anybody removed her clothes just after she was set on fire. These suspicious circumstances may smack of entirely a different story which has not been brought before us by the prosecution. In all probabilities it shows that Kamla happened to be present in her baithak quite naked with three strangers.

For the aforesaid reasons, we do not find any fault with the judgment of acquittal rendered by the Additional Sessions Judge, Jind on 5.12.1996. Consequently, this appeal filed by the State stands dismissed.