JASBIR @ KALIYA AND ANOTHER Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE present appeal is directed against the judgment dated 31.08.2009 convicting the appellants for an offence under Section 302 IPC read with Section 34 Indian Penal Code (for short 'IPC') and the order dated 01.09.2009 sentencing the appellants to undergo rigorous imprisonment for life and to pay a fine of Rs. 2000/ - each. The prosecution case was set in motion on the statement of deceased -Mukesh wife of Ashok Kumar made to Sh. Peeyush Gakhar, Judicial Magistrate Ist Class (for short 'JMIC'), Siwani Camp at Bhiwani on 12.09.2008 at 2:10 PM. She stated that she got married 10 -12 years back and she resides on the first floor of her in -laws house. Khazani, who is aunt of her husband, sprinkled kerosene oil on her. Amar Singh, her father -in -law caught hold of her and Kalia, her Devar (brother in law) set her ablaze with the help of a match stick. In response to another question, she stated that wife of Manoj took her to hospital. In the police proceedings Ex. PD/1 leading to the recording of an FIR, it is recorded that on 11th September, on receiving of a ruqa from Government Hospital, Bhiwani and medico legal report (for short 'MLR'), an opinion was sought from the doctor as to whether injured -Mukesh is fit to make statement. The doctor declared injured -Mukesh fit to make statement. Sh. Peeyush Gakhar, JMIC, Bhiwani reached General Hospital for recording of statement but the doctor told to learned Judge that Mukesh is not fit to make statement now. Thereafter, on another request made by the Investigating Officer, doctor declared Mukesh fit to make statement on 12.09.2008. Thereafter, the statement of the abovementioned Mukesh was recorded under Section 164 of the Code of Criminal Procedure (for short 'Cr.P.C.'). She breathed her last on 17.09.2008.

(2.) THE postmortem on her dead body was conducted by PW -12 Dr. Vinay Kumar on 18.09.2008. Dr. Vinay Kumar proved the postmortem report Ex. PN. The cause of death was burns and complications thereof, which were sufficient to cause death in due course of life. PW -11 Inspector Babu Lal is the Investigating Officer. He took in possession burnt clothes and kerosene can after sealing them. Accused Jasbir was arrested on 06.10.2008. On the basis of his disclosure statement Ex. PM, one match box was recovered from his house. He also arrested accused Amar Singh on the same day. On completion of investigations, report under Section 173 Cr.P.C. was prepared by Ram Bilash, Inspector/SHO. The Investigating Officer, in cross -examination, admitted that deceased -Mukesh along with her husband and children used to reside on the first floor of the house while the other members of the family used to reside on the ground floor separately.

(3.) PW -10 is Dr. R.P. Sharma, who declared the deceased as fit to make to make the statement on 12.09.2008. He proved his certificate Ex. PJ and his opinion Ex. PJ/1. In cross -examination, he stated that the statement that the patient was conscious is on the basis that no sedatives were given to the patient. Normally, no sedatives are given to the patient in burn cases but pain killers are given. He denied the suggestion that he was not present at the time of recording of statement on 12.09.2008.