State of H.P. vs Lal Chand

Deepak Gupta, J.—This appeal by the State is directed against the judgment of the learned Sessions Judge, Una in Sessions case No. 10 of 1998 decided on 7.9.1999 whereby accused Lal Chand was acquitted of having murdered his daughter.

The brief facts of the case are that on 18.4.1999 a telephonic message was received in the Police Station, Bangana, which was recorded in the Rojnamcha as Ext.PG, by PW-13 ASI Jarnail Singh from Shri Surinder Singh to the effect that the accused had set on fire his own daughter. Immediately, thereafter ASI Jarnail Singh alongwith Kishori Lal and Kamal Dev went to the spot. On the way, when they reached Lathiani they found PW-1 Baldev Singh and PW-2 Ramesh Kumar taking one girl Anju who was badly burnt in a Jeep towards Una. The ASI inquired from Anju as to what had happened. She made a statement Ext.PA in the presence of the aforesaid witnesses that she was the eldest daughter and her father was a drunkard. She had taken the 10th class examination. On 18.4.1998 at about 1.30 p.m when she was alone in the house, her father, who was under the influence of liquor started abusing her. She asked her father not to drink any more liquor. On this her father got infuriated and tried to beat her. To save herself she went inside a room and bolted the room from inside. Her father broke open the door, came into the room and sprinkled kerosene oil on her and then set her on fire. She received burn injuries and came running out of the room. She fell on the courtyard where PW-1 Baldev Singh extinguished the fire. On the basis of this dying declaration Ext.PA, F.I.R Ext.PH was registered.

Unfortunately, Anju died in the hospital at about 9.35 p.m on the same day and therefore, the case was converted to one u/s 302 IPC. The accused was arrested and during investigation he allegedly got recovered screw-drivers, which he had allegedly used to open the door. After investigation the accused was charged with having committed the offence aforesaid. He pleaded not guilty and claimed trial. The learned trial Court acquitted the accused mainly on the ground that the dying declaration could not be believed and there was no other evidence to connect the accused. Hence the present appeal by the State.

The prosecution examined a number of witnesses. Baldev Singh is PW-1. According to him, he heard cries coming from the house of the accused. When he reached the house he saw that Anju Devi was on fire. The accused was standing nearby and had a hoe in his hand. The witness snatched the hoe from the hands of the accused. He extinguished the blaze from the body of the deceased with a piece of cloth. In the meantime, a number of persons gathered there. According to him the accused did not try to help in extinguishing the fire. He then carried the deceased to his house and took her to the hospital at Una. While they were on the way to the hospital, 2-3 policemen met them at Lathiani. These policemen recorded the statement of Anju. According to this witness, Anju had stated that her father had broken open the door with the help of a Jhabbal (iron rod) and had also stated that her father had set her on fire after pouring kerosene oil on her body. Anju was unable to sign or thumb mark the statement since her hands were burnt. He and Ramesh Kumar signed the statement, which was read over to the witnesses as well as to Anju. Then they went to the hospital at Una. The witness left the hospital at 8.00 p.m and later at about 10.30 he came to know that Anju had expired. This witness further stated that the accused was under the influence of liquor when he had seen him at the spot. He also is a witness to the recovery of two screw drivers. In cross-examination the witness denied that the accused helped in extinguishing the blaze from the person of Anju. He also denied that the hands of the accused were burnt during this process. He denied that he and other persons had started beating the accused. A suggestion has been put to this witness that the accused had to run away from his house because of the fact that he had been beaten up by the villagers. According to this witness after the statement of Anju was recorded at Lathiani they all went straight way to the hospital. This witness is illiterate and has just studied upto class-IV. He further stated that Anju had made a statement in Hindi as recorded in the dying declaration Ext.PA. He denied that Ext.PA had been prepared later on. The witness has also denied that he has any land adjoining to the land of the accused or that there is any dispute with the accused. He, however, admits that there is a dispute regarding a passage which was being used by him and the accused. This witness also admitted that his brother Jaswant Singh had filed a complaint against accused Lal Chand since the accused had broken the teeth of Jaswant Singh with a hammer. He denied the suggestion that Anju had some love affair with a boy and her marriage has been fixed with Raj Kumar and since Anju did not want to marry Raj Kumar she committed suicide.

Ramesh Kumar is the other witness to the dying declaration Ext.PA. He was examined as PW-2. According to him on the day of the incident he was harvesting wheat in his fields. Anju and her grand mother were also harvesting wheat at a short distance. According to this witness he then went to Lathiani to make payment to a goldsmith and when he was at Lathiani Bazar then he was informed by one Raj Kumar that the accused had burnt his daughter. He then returned to his house and saw that Anju was being brought by a few persons to the road for taking her to Una hospital. He was asked by Kishan Singh to pick up a policeman from village Lathiani. He took the scooter for bringing the policemen who were walking on foot towards his village. According to him when he reached near village Lathiani the police were already in the process of recording the statement of Anju, which was recorded in verbatim in his presence and he signed the same. He further states that the statement was read over to Anju and the witnesses. He then brought the police to the house of the accused where the police recovered some burnt pieces of wood, etc. They also recovered a bottle containing some kerosene oil. In cross-examination he stated that one of the policemen had asked Anju how she got burnt and then she in Hindi stated the entire incident, which was recorded verbatim in Ext.PA. According to him he did not go to the hospital. He denied that one Mohinder Pal had refused to marry Anju. He also denied that marriage of Anju was fixed with Raj Kumar for 27.7.1998. The witness denied that the police had recovered any burnt letters or partly burnt letters when they went to the house of the accused.

The other witness to the dying declaration is PW-13 ASI Jarnail Singh. According to him, when he, after receiving the message, which was diarized as Ext.PG, was going to village Neri they met Anju near Lathiani while she was being taken by some persons to the hospital. He recorded her statement Ext.PA in the presence of Baldev Singh and Ramesh Kumar. She was unable to sign or thumb mark the statement since her fingers were totally burnt. He read over the statement to Anju Devi and thereafter got the same signed from Baldev Singh and Ramesh Kumar. According to him two ladies Bhagwati Devi and Bishani Devi were also sitting in the jeep in which the deceased was taken to the hospital.

PW-4 Ramesh Chand is another witness. According to him he reached the house of the accused when Anju Devi was already on fire. He helped her to be placed in a jeep. There were 4-5 other persons who were in the jeep including PW-1 Baldev Singh, Bishni Devi, Bhagwati Devi and Ashwani Kumar driver of the jeep. They had only gone about three kilometers from their village when they met the policemen. The deceased made a statement before the police stating that her father (the accused) had consumed liquor and had abused her. She had then gone inside a room and bolted the door from inside. The accused broke open the door with the help of an iron rod and then poured kerosene oil on her and set her on fire. According to him, the police reduced her statement into writing and the statement is Ext.PA. Thereafter, Anju was taken to the hospital where she died at night. In cross-examination, he stated that one year prior to her death Anju had written letter to one Mohinder Pal but that letter was stolen by Narinder Pal from the note book of Anju Devi before it could be mailed and Narinder Pal had handed over that letter to him. In that letter she had written that she was in love with Mohinder Pal. He denied the suggestion that Anju had stated that she had herself set on fire. He again reiterated that the statement made by Anju was the same which was recorded in Ext.PA. According to him, she made her statement in one go.

PW-7 Bishani Devi states that she heard the cries of Anju Devi and went to her house. By that time PW-1 Baldev Singh, who is her brother-in-law had already reached the spot and extinguished the fire. The deceased was then taken in a jeep alongwith a few other persons. This witness also accompanied the jeep. On the way when they were near village Lathiani they met a few policemen who asked Anju Devi as to what had happened. Anju Devi told the police that after she had bolted the room from inside the accused broke open the door with the help of a Jabbal and poured kerosene oil on her and set her on a blaze. A suggestion was put to this witness in cross-examination that previously Anju had tried to commit suicide by drowning. She did not deny or admit the suggestion but stated that her daughter had told her that the deceased was sitting by the side of Govind Sagar Dam and was brought home by her daughter. She specifically denied the suggestion that Anju Bala had made a statement to the police that she had set herself on fire. According to her Ext.PA was correctly recorded and all that Anju had stated was recorded in this statement.

PW-5 Dr. Indu Bhardwaj examined the deceased on 18.4.1998 at the district hospital Una. She proved the medico legal certificate Ext.PE. She found that the deceased was burnt 68% above the waist and the thighs were burnt to the extent of 5%. The finger tips of her fingers were burnt. According to this witness Anju was conscious and was capable of talking and giving a statement. In cross-examination she admitted that the deceased was uncooperative but the witness explained that this meant that the prosecutrix was under severe pains.

PW-6 Dr. R.S. Dadhwal conducted the post mortem and in his opinion Anju died due to burn injuries.

The accused also led evidence. DW-1 Baldev Singh is an uncle of the deceased since he is married to the sister of the accused. He has produced letters Ext.D-1 to Ext.D-6 and copy Ext.D7 and according to him these letters were in the hand of the deceased. DW-2 Dr. J.P. Singh examined the accused on 21.4.1998, i.e. three days after the incident. He found some three minor injuries and a superficial burn on the right hand of the accused.

We have heard learned Counsel for the parties. It is contended by Shri Rajesh Mandhotra, learned Deputy Advocate General that the learned trial Court gravely erred in not relying upon the statements of the witnesses and in discarding the statement Ext.PA. The main ground which weighed with the learned trial Court was that the dying declaration could not be relied upon since the same had been scribed by the Investigating Officer and was not attested by any doctor, nurse or magistrate. Reliance has been placed by the learned trial Court on the judgment of Kaushalya and Ors. v. The State 1989 Cri. L.J. 157.

The dying declaration of Kumari Anju Devi, when translated, read as follows:

Stated that I am a resident of village Neri. I have three sisters and a brother. I am the eldest. My father is addicted to liquor. I had appeared in the class-10 papers. Today on 18.4.1998 at about 1.30 p.m I was alone at my home at village Neri. My mother had gone to the fields. My father Lal Chand, who was under the influence of liquor, started abusing and cursing me. I asked my father not to drink any more liquor. My father got infuriated and he came towards me with the intention of beating me. To save my life, I went inside the house into a room and closed and bolted the door from inside. My father immediately broke open the door. He came inside the room. There was a full bottle of kerosene oil lying inside the room. He poured kerosene oil over me and lit a match stick and threw it upon me. My clothes immediately caught fire and my entire body above the legs got badly burnt. My hands also got badly burnt. I immediately went out of the room and fell down in the courtyard. Baldev Singh S/o Roop Singh extinguished the fire on my body and on my clothes. In case he had not extinguished the fire I would have died on the spot itself. Then Baldev and Ramesh Kumar Ward Panch put me in a jeep and were taking me to the hospital when I met you near Lathiani. Please take action. Since my hands are badly burnt, I cannot sign and put my thumb mark. I have made this statement in the presence of Baldev Chand and Ramesh Kumar.

This is a case where the injured Anju was being taken to hospital and the police met these people at village Lathiani. There was neither any opportunity nor any occasion to arrange for a magistrate, doctor or nurse. All the people who were present i.e. PW-1 Baldev Singh, PW-2 Ramesh Kumar, PW-4 Ramesh Chand, PW-7 Bishani Devi and the Investigating Officer PW-13 Jarnail Singh have in no uncertain terms stated that Anju did make the statement in question. Though they all have been cross-examined at length nothing has been brought out in their cross-examination to show that there are making a false statement. There are no contradictions in their statements and the statements of these witnesses clearly show that Anju Devi had made a statement to the police that her father had set her on fire. In our opinion the learned trial Court gravely erred in rejecting the written statement on a very hyper technical ground that no magistrate was associated with recording of the statement. No doubt, it is true that Dr. Indu Bhardwaj, PW-5 has stated that Anju was in a position to make a statement but merely because a statement was not recorded thereafter will not make her earlier statement false especially when all the independent witnesses have in one voice supported the prosecution case and have stated that this dying declaration was made by the accused. There is no reason why the statement of these four independent witnesses should be disbelieved. Except for PW-1, there is no allegation of enmity against any of the other co-villagers. There is no reason why they would falsely implicate the father in a case of burning of his daughter.

The learned trial Court has also come to the conclusion that some of the witnesses had stated that the accused had broken upon the door with a Jabbal whereas recovery of a screw driver was made as the instrument of breaking open the door. We have quoted the dying declaration in detail above and in this statement although Anju stated that her father broke open the door and entered the room. She has not stated how he broke open the door. The most important aspect was whether the accused had set his daughter on fire or not. Whether the door was broken with a screw driver or with a Jabbal is not very material.

Another important aspect of the matter is that as per Ext.PE, which has been proved by the doctor, the prosecutrix was brought to the hospital at about 4.50 p.m. It is apparent that she was badly burnt and in great pain. Therefore, the immediate requirement was of ensuring that she should be given appropriate treatment. She died a few hours later on the same evening. Therefore, there was hardly any opportunity to record a fresh statement.

In view of the above discussion, we are clearly of the view that the learned trial Court gravelly erred in disbelieving the statement Ext.PA. We are of the considered opinion that the prosecution has proved beyond reasonable doubt that this statement was the correct statement made by Anju Devi. No daughter would falsely implicate her father. The defence being set up is that Anju Devi had a love affair with some other boy and since her parents were getting her married to some other person, she committed suicide. This explanation is like a double edged sword. It can also provide a motive for the accused to set the daughter on fire since the daughter was going against the wishes of her parents. Even if we exclude this aspect, we are of the considered opinion that on the basis of the evidence led on record especially the statements of the witnesses in whose presence the statement Ext.PA was recorded, there is no manner of doubt that the accused set his daughter on fire. Another important aspect of the matter is that even as per the accused he was present when his daughter was on fire. If she had committed suicide why did the accused take no steps to extinguish the fire? Why did the neighbours have to come and set off the fire? The only explanation given in this regard is that a suggestion was put to some of the witnesses that the villagers started beating up the accused and therefore, he ran away. This explanation is totally unbelievable. Why would the villagers beat up the father of a girl who had tried to commit suicide? It is obvious that when the villagers came on the spot the accused having realized his mistake ran away. This lends credence to the prosecution version that it was the accused who set his daughter on fire.

It is more than apparent that the accused was in inebriated condition when the occurrence took place and he set his daughter on fire in a fit of anger. His intention may not have been to kill his daughter but he knew that his act was such that it could cause bodily injury which was likely to cause her death. We, therefore, find that the accused is guilty of having committed an offence punishable u/s 304 IPC.

Now, on the issue of quantum the matter be listed on 7th January, 2011. The bail bonds of the accused are cancelled and he be produced before us on the said date, so we can hear him on the issue of quantum of sentence.