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STATE OF PUNJAB versus ROMESH KUMAR

High Court of Punjab and Haryana, Chandigarh

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State of Punjab v. Romesh Kumar - CRA-D-233-DBA-1998 [2007] RD-P&H 731 (22 January 2007)

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Date of decision : November 08, 2006

State of Punjab ....Appellant

versus

Romesh Kumar ....Respondent

Coram: Hon'ble Mr. Justice Virender Singh Hon'ble Mr. Justice A.N. Jindal

Present : Mr. M.S.Sidhu, Senior Deputy Advocate General, Punjab Mr. A.S.Gill, Advocate, for respondent

Virender Singh, J.

Respondent Romesh Kumar (hereinafter to be referred to as 'accused') was charged under section 302 IPC for allegedly causing the death of his wife Sushma Rani by setting her ablaze on 22.9.1996 in the area of Jalandhar. Vide impugned judgment of learned Sessions Judge, Jalandhar dated 21.10.1997, he stands acquitted for the said charge. Hence, this appeal by State of Punjab.

In brief the case of the prosecution is that Sushma Rani was married to the accused 12 years back before the present occurrence and was blessed with two sons. On 22.9.1996, she was present in her house when the accused quarrelled with her on the plea that she had not given him hot water. On this issue, the accused flared up and threw the vegetables and started beating her. It is then the case of the prosecution that Sushma Rani caught hold of her legs and pleaded that he should not insult her publically.

He held her from her long hairs and took her into room and said that she should go to her parents. Thereafter he lifted stove with kerosene oil from the kitchen telling her that he would put the entire house on fire. Sushma Rani snatched the stove from him. In the meantime Ramesh Chander their neighbourer also came there. It is then alleged that the accused then lifted danda(stick) and again started beating her. Thereafter he told her to prepare meals for her children. When she was present near the stove, her saree caught fire. Her elder son tried to put off the fire but the accused did not make any attempt to save her. As per the case of the prosecution, Sushma Rani was taken to Railway Health Unit, Jalandhar by the accused himself with a case of 100% burn injuries and was examined by Dr. Mrs. Surinder Khanna. She was however, referred to Civil Hospital, Jalandhar. She stated before the doctor that she had received burn injuries while cooking on a stove.

ASI Bhagwant Kumar PW9 on receipt of an intimation from Emergency Medical Officer, Civil Hospital, Jalandhar on the same day reached hospital and after getting the opinion of the doctor regarding the fitness of the patient went to Judicial Magistrate Ist Class, Jalandhar, requesting her to record statement of the injured who asked him that the statement would be recorded only after the registration of the case. ASI Bhagwant Kumar then came to the hospital and recorded statement of Sushma Rani Ex. PJ. The injured put her thumb impression on her statement. In the said statement, Sushma Rani stated that when she was pumping the stove for the purpose of lighting it, all of sudden flame came out of it along with some drops of kerosene oil as a result whereof the saree which she was wearing caught fire. Her husband with the assistance of the children extinguished the fire and thereafter she was brought to Railway Hospital and then shifted her to Civil Hospital for treatment.

On 1.10.1996, Chander Pal brother of Sushma Rani came to the Police Station alleging that her sister had been put on fire by the accused and she was desirous of making another statement upon which ASI Bhagwant Kumar went to the hospital and moved an application seeking opinion of the doctor. Another statement Ex. PL of injured was recorded and her right thumb impression was obtained. On the basis of the said statement, formal FIR was recorded in the concerned Police Station. In the said statement, she alleged that her husband had sprinkled kerosene oil on her body and lit it. When she raised alarm, her children who were playing outside came there and his elder son Harish extinguished the fire by pouring water. She then stated that she was got admitted by her husband in the hospital as many persons had gathered there. She then stated that the earlier statement made by her was under pressure of her husband and thereafter she had narrated the real facts to her sisters and brothers.

Subsequently, another application was moved for recording the statement of injured by a Magistrate whereupon Sh. H.S.Dhaliwal, Duty Magistrate reached the hospital and he after getting opinion of the doctor recorded another statement Ex. PH of the injured in which she stated that her husband had asked her to prepare meals for the children and when she was near the stove, her saree caught fire which was the handiwork of her husband and she was of firm conviction that her husband was behind all this act and it was not an accidental injuries. She then told before the Magistrate that her elder son had tried to extinguish the fire whereas her husband did not make any attempt.

After the completion of the investigation, the accused was challaned and charged under section 302 IPC by the trial court.

In order to substantiate the charge, the prosecution has examined Dr. Mrs. Surinder Khanna PW1, Anil Kumar Dutta PW2, Harbans Lal PW3, Yudishter PW4, Romesh Kumar PW5, Harish Kumar PW6, Dr. Gurpal Singh PW7, Sh. H.S.Dhaliwal, Sub Divisional Judicial Magistrate PW8, ASI Bhagwant Kumar PW9, SI Vijay Kumar PW10, Constable Pankaj Kumar PW11.

The stand taken by the accused as emerges from his statement recorded under section 313 Cr.P.C. was of false implication asserting that his wife caught fire when she was in the kitchen while he himself was sleeping in the room after he had come from duty and that on hearing her shrieks, he got up and extinguished fire and in this process he had also suffered burn injuries on both hands whereafter he took her to Railway Hospital, Jalandhar and then to Civil Hospital as a referred case. In defence, the accused had examined Raj Kumar DW1 and Dr. Suresh Dadra DW2.

After appreciating the entire evidence, the accused has earned acquittal.

We have heard Mr. M.S.Sidhu, learned Senior Deputy Advocate General, Punjab and Mr. A.S.Virk, learned counsel for the respondent. With their assistance, we have gone through the entire record minutely.

Mr. Sidhu submits that there is no reason to disbelieve the statement of Sushma Rani (deceased) made before ASI Bhagwant Kumar PW9 on 1.10.1996 in which she had admitted that the earlier statement made by her was under pressure of the accused. The learned State counsel then submits that it is otherwise clear from the statement of Anil Kumar Butta PW2 that the deceased had submitted application before Delhi Legal Aid and Advisory Board in which she had mentioned that her husband was harassing her on account of dowry. Even the statement of Romesh Kumar PW5 is reliable as it corroborates the case of the prosecution. Strengthening his arguments, the learned counsel then submits that there is no reason to disbelieve the statement of Harish Kumar PW6 elder son of the deceased and from the entire evidence on record the charge of section 302 IPC against the accused is established to the hilt.

While refuting the submissions advanced by Mr. Sidhu, Mr.

Gill submits that there is no perversity in the judgment calling for the interference of this Court. The deceased had made different statements at different stages and therefore, it is not safe to believe the statement allegedly made by her before ASI Bhagwant Kumar as the same was recorded after brother of the deceased had reached hospital. According to Mr. Gill, chances of tutoring the deceased by her parental side cannot be ruled out and therefore, the learned trial court has rightly rejected the dying declaration. He then submits that even otherwise the evidence of Harish Kumar is not trust worthy being a child witness.

There is no doubt that the dying declaration above if passes the test of scrutiny can form the basis of the conviction, but once the court finds that there is a tinge of tutoring in it then it is not safe to rely upon the said dying declaration.

In the case in hand when the deceased was initially examined by Dr. Mrs. Surinder Khanna, Medical Officer, Railway Health Unit, Jalandhar (PW1) as a case of burn injury, she had herself given the history telling that she had received burn injuries while cooking on a stove. In the second statement recorded by ASI Bhagwant Kumar PW9, she stated that when she was pumping the stove for the purpose of lighting it, all of sudden flame came out of it along with some drops of kerosene oil as a result of whereof her saree had caught fire. She rather stated that her husband extinguished the fire with the assistance of her children. It is the third statement recorded by ASI Bhagwant Kumar after he was approached by Chander Pal brother of the deceased in which she alleged that her husband had sprinkled kerosene oil on her body and lit it and her son Harish thereafter extinguished the fire by pouring water on her. The learned trial court has disbelieved the said dying declaration. No doubt while disbelieving the dying declaration, the trial court has not entered into a detailed discussion but we for arriving at a just conclusion of the case, have once again re-scanned the prosecution evidence on this issue and are of the view that it is not safe to maintain conviction on the statement Ex. PL allegedly made by the deceased before ASI Bhagwant Kumar PW9 which is basis of the recording of First Information Report or the other statement Ex. PH recorded by Sh. Dhaliwal, Duty Magistrate as tutoring to her from any source cannot be ruled out. Therefore, in the peculiar set of circumstances, even the statement recorded by the Judicial Magistrate also looses its value and it is not safe to convict on the basis of the said dying declaration.

After having discarded the dying declaration, the other material evidence left for consideration, in our view, is the statement of Harish Kumar PW6, the elder son of the deceased. In his substantive statement, he states that prior to the present occurrence, her father had been beating his mother and on the fateful day, he hid himself under a cot while kerosene oil was being put on his mother by his father and he then set her ablazed. The view taken by the learned trial court is that his substantive statement is in direct contradiction with the statement deposed by injured (since deceased) in her statement Ex. PL wherein she stated that at the time of incident her both sons were playing outside the house and they came inside only after she raised an alarm and thereafter fire was extinguished by her son Harish Kumar. Another lacuna which is worth consideration is that in his cross- examination, Harish Kumar stated that his maternal uncle was providing all necessary articles to him and they had asked him that his father should not be spared by him. He also stated that he was taken to the police by his maternal uncle after 2/3 days of his coming from Delhi and by that time his father was in custody. Admitted position is that at that stage, he had not disclosed any fact to the police about the incident happened in his presence.

The learned trial court has, therefore, not attached any value to the statement of Harish Kumar considering that the aforesaid fact gives inkling that there is inordinate delay in recording FIR and the accused was arrested much before the recording of the same. In our view, the approach adopted is correct.

No doubt the Evidence Act does not prescribe any particular age as determinative factor to treat a witness to be a competent one. On the contrary, section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions because of the tender years, extreme old age, disease whether of mind or any other kind. But it is well settled that while examining the evidence of a child witness, the court as a rule of prudence has to consider such evidence with close scrutiny to appreciate as to whether it passes through the test of reliability or not. We have tested the evidence of Harish Kumar, on that touch stone, and are of the considered view that the same has been rightly rejected by the learned trial court.

We do not find any other material point worth consideration in the case in hand.

The scope of interference by this Court in the judgment of acquittal is very limited. Principles governing interference in the judgment of the acquittal by the Appellate Court has been laid down in case Bhim Singh vs State of Haryana 2002(1) SCC 461 by making the following observations:-

"Before concluding, we would like to point out that this Court in a number of cases has held that an appellate court entertaining an appeal from the judgment of acquittal by the trial court though entitled to re-appreciate the evidence and come to an independent conclusion, it should not do so as a matter of routine. In other words, if from the same set of evidence two views are possible and if the trial court has taken one view on the said evidence, unless the appellate court comes to the conclusion that the view taken by the trial court is either perverse or such that no reasonable person could come to that conclusion or that such a finding of the trial court is not based on any material on record, it should not merely because another conclusion is possible reverse the finding of the trial court."

In a latest judgment of Apex Court rendered in Kallu alias Masih and others vs State of Madhya Pradesh 2006(1) RCR (Criminal) 427, their Lordships observed as under:- "While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence.

However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible.

It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court." Having scrutinized the entire case very minutely with the assistance of learned counsel for both the sides, we do not find any infirmity, perversity or unreasonableness on any count warranting our interference. Therefore, we do not intend to disturb the order of acquittal earned by Romesh Kumar accused.

The net result is that the instant appeal is hereby dismissed.

( Virender Singh )

Judge

( A.N. Jindal )

November 08, 2006 Judge

'dalbir'


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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