Punjab-Haryana High Court
Ravinder Singh And Others vs State Of Haryana on 20 February, 2013
Author: Ritu Bahri
Bench: Hemant Gupta, Ritu Bahri
CRA No.744-DB of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA No.744-DB of 2010
Date of Decision:- 20.02.2013
Ravinder Singh and others ...Appellants
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA
HON'BLE MS.JUSTICE RITU BAHRI
PRESENT: Mr. Vikram Singh & Mr. Rahul Vats, Advocates
for appellant Nos.1 and 3.
Mr. J.S. Lalli, Advocate
for appellant No.2.
Mr. Sourabh Mohunta, DAG, Haryana,
for the respondent-State.
Notes: 1.Whether to be referred to the reporters or not?
2.Whether the judgment should be reported in the Digest?
RITU BAHRI, J.
Ravinder Singh, Kamaljit Kaur and Karamjit Kaur are in appeal aggrieved against the judgment of conviction dated 17.07.2010 and order of sentence dated 20.07.2010 passed by the learned Additional Sessions Judge, Karnal, vide which all the appellants were convicted for an offence punishable under Section 302 IPC read with Section 34 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/- each. In default of payment of fine, the appellants were directed to undergo further rigorous imprisonment for a term of two years.
On 04.09.2008, on receipt of ruqa regarding Gagandeep wife of Ravinder Singh resident of G-I Station Area, Nilokheri (since deceased), ASI CRA No.744-DB of 2010 -2- Babu Ram reached General Hospital, Nilokheri and vide Ex.P7 sought opinion of the Doctor regarding the fitness of the patient. Dr. Amrit Pal Kaur declared that the patient was fit to make statement. An application (Ex.P3) was moved before Shri Amit Garg, Judicial Magistrate Ist Class, Karnal to record the statement of the patient. Shri Garg reached General Hospital, Karnal and recorded the statement of Gagandeep on 04.09.2008. In her statement (Ex.P12), Gagandeep stated that at about 9 P.M., her mother-in- law Kawal w/o Makhan singh and aunti mother-in-law Karamjeet w/o Bade Wala, brother-in-law Shambu @ Raja and her husband Ravinder gave her beatings. After that her mother-in-law, aunty mother-in-law and younger brother-in-law caught hold of her and her husband sprinkled the oil upon her from a cane. Thereafter, her husband put her on fire with the match- stick. She ran after opening the door and called the neighbourers, who set off the fire after throwing water. She further stated that her husband- Ravinder Singh, Kawal and Shambhu @ Raja used to beat her since a long time due to demand of dowry. They used to demand motor cycle and Rs.50,000/- from her. She already gave money two or three times after bringing from her father. Her father had died six years ago. She stated that her mother-in-law Kawal, aunty mother-in-law Karamjeet, brother-in-law Shambu @ Raja and her husband Ravinder tried to kill her by setting her ablaze due to greedy demand of dowry. Thereafter, she died on 09.09.2008.
On the basis of such statement, FIR No.234 dated 04.09.2008 (Ex.P10) was recorded at about 2.55 PM on 04.09.2008 for the offences punishable under Sections 498-A/304-B/34 IPC. The special report were sent CRA No.744-DB of 2010 -3- to the concerned Illaqa Magistrate, SSP and DSP City. Thereafter, SI Janak Singh along with photographer reached the place of occurrence and prepared demarcation report (Ex.P1) as well as site plan (Ex.P14). He also collected the burnt clothes of deceased and converted into a parcel and sealed with the seal of 'JS'. He also collected plastic cane containing two bottles of kerosene oil. It was also converted into parcel and sealed with the seal of 'JS'. The seal after use was handed over to Jarnail Singh son of Fakir Singh. Parcels were taken into police possession vide Memo Ex.P2 singed by HC Jai Narain.
After completion of investigation, the accused Ravinder Singh and Kamaljit Kaur were arrested. However, accused Karamjit Kaur and Raja @ Shambhu were found innocent. Challan was presented against the accused Ravinder Singh and Kamaljit Kaur. Thereafter, on an application moved by the prosecution under Section 319 Cr.P.C, the other two accused i.e. Karamjit Kaur and Raja @ Shambhu were also summoned to face the trial vide order dated 14.07.2009. Accused Raja @ Shambhu, however, was declared a juvenile and is now facing enquiry before the Juvenile Justice Board. Charge sheet was amended on 13.07.2010 and alternative charge under Section 302 read with Section 34 IPC was framed against all the accused to which they pleaded not guilty and claimed trial. The prosecution examined 15 prosecution witnesses.
Swaran Kaur (sister of the deceased) while appearing as P.W.8 had deposed that her sister was married with accused Ravinder Singh @ Mangu resident of Station area, Nilokheri four years ago. Some days after the CRA No.744-DB of 2010 -4- marriage, Ravinder @ Mangu, Kamaljit, Karamjit and Raja started harassing her sister for bringing insufficient dowry and raised demand of motorcycle and Rs.50,000/-. She was beaten up badly, after which she came back to her parental home i.e. Kurukshetra. Her husband, Kamaljit and Karamjit came to Kurukshetra to take her back. She and her mother gave her in-laws Rs. 10,000/- on their demand. Thereafter, her in-laws took her back. However, the accused persons again harassed her and gave her beatings. She further stated that about 1 year ago, a police official came to house at night at 11.00 P.M and informed that her sister Gagandeep had been set on fire. Thereafter, she alongwith her mother rushed to Nilokheri, but Gagandeep was already shifted to Karnal Hospital. They eventually met her at Rohtak PGIMS. Gagandeep told Swaran Kaur that all accused persons i.e. her husband, Karamjit, Kamaljit and Shambu poured kerosene oil on her and set her on fire. Swarn Kaur further stated that Gagandeep was set on fire as she could not meet the demand of the accused for bringing motorcycle and cash. In her cross examination, Swaran Kaur admitted that she came to know about the incident from Gagandeep Kaur (since deceased). She had further admitted that she had reached hospital along with her mother. She stated that she was not aware whether statement of Gagandeep was recorded by the Doctor at Nilokheri that she received injuries due to bursting of stove. She has further stated that Ravinder @ Mangu had filed divorce case against Gagandeep at Kurukshetra. She denied that any complaint case has been filed by Gagandeep against the accused regarding the demand of Rs.50,000/-.
CRA No.744-DB of 2010 -5-
However, P.W.9 Jarnail Singh and P.W.10 Baldev Singh have resiled from their statements and did not support the prosecution version that there was any demand of dowry by the accused from the family of Gagandeep.
P.W.5 Shri Amit Garg, JMIC Karnal in his statement deposed that on 04.09.2008, he was posted as Judicial Magistrate Ist Class, Karnal and on that day, SI Janak Singh moved an application before him for recording statement of Gagandeep kaur under Section 164 Cr.P.C (Ex.P3). On receiving the application, he passed order (Ex.P4) and proceeded to the hospital for recording statement of deceased. She was declared fit to make the statement as per the opinion of Dr. Amrit Pal Kaur (Ex. P7). The statement of Gagandeep was recorded on oath (Ex.P8) which bears his signatures. After recording the statement, he again obtained opinion of Dr. Amrit Pal Kaur (Ex.P9) that patient remained fit while making the statement. Thereafter, he passed the order (Ex.P10) and delivered a copy of the statement to SI Janak Singh.
As per Post Mortem report (Ex.P16), the deceased died due to extensive burns and complications thereof, which were ante mortem in nature and sufficient to cause death in due course of life. As per MLR (Ex.P22), the deceased suffered 100% burn injuries.
Mr. Vikram Singh, Advocate appearing for appellant Nos.1 and 3 and Mr. J.S. Lalli, Advocate representing appellant No. 2, have referred to the opinion given by the Doctor (Ex.P23) to argue that the deceased was found fit for giving statement. Learned counsel then referred to the statement of CRA No.744-DB of 2010 -6- the deceased (Ex.D1) in which it has been written as that she had set herself on fire. She has submitted that when she was preparing the chapati, excess gas was pumped in the stove. Nobody was present in the house and she was alone. There was no fault of any family member. She had no child. Learned counsel while referring to the statement (Ex.D1) has submitted that this statement has been wrongly discarded by the trial Court.
It is also argued that family members of the deceased i.e P.W.9 and P.W.10 have also resiled from their statements and did not support the prosecution version that there was any demand of dowry by the accused from the family of Gagandeep. Thus, the trial Court should have acquitted the accused. Finally, it was argued that the death of the deceased is within 7 years of the marriage in her matrimonial house and the allegations in the dying declaration that she was being harassed on account of bringing less dowry, therefore, the conviction under Section 302 IPC is not sustainable as at best it is case of offence under Section 304-B IPC.
Heard learned counsel for the parties.
Learned counsel for the appellants rely upon dying declaration (Ex.D1) made by the deceased to Dr.Om Pal, Medical Officer, Government Hospital, Nilokheri at about 1.30 AM on 04.09.2008, wherein the deceased has purportedly stated that she has no dispute with her mother-in-law. The endorsement on such declaration is also to the effect that the patient is in sound mental state, but she cannot sign as all body is in burn injury state. Such opinion of the Doctor is witnessed by DW-2 Ompati and Sawaran Singh.
CRA No.744-DB of 2010 -7-
We do not find any merit in the said argument. The said dying declaration (Ex.D1) was recorded by a Medical Officer at 1.30 AM after an opinion was given by the Doctor at 12.20 AM that the patient is unfit for making statement at the request of ASI Babu Ram. The argument raised by learned counsel for the appellants is factually incorrect. In fact, in Ex.P23 the opinion of the Doctor is that the patient is unfit to give statement. If the patient was unfit to make statement at 12.20 AM, therefore, after about an hour, she cannot be fit to make a statement. Still further, the Doctor who has recorded such statement has not been examined as a defence witness. Therefore, the evidence led by the defence to the effect that in view of dying declaration (Ex.D1), no offence can be said to have made out against the appellants, cannot be believed. The dying declaration (Ex.D1) allegedly recorded by the Doctor is not admissible in evidence, as the best evidence has not been produced. There are direct allegations against each of the accused in the dying declaration recorded by P.W.5 Shri Amit Garg. JMIC, Karnal. The statement recorded by the learned Magistrate is after verifying the mental state of mind of the deceased. After eliciting answers to the 5 questions, the learned Magistrate has endorsed that the patient replied to all the questions in a fit state of mind. The Judicial Magistrate also got the opinion of Dr. Amrit Pal Kaur, who had given her opinion before and after recording the statements (Ex.P7) and (Ex.P9).
Her sister Swaran Kaur while appearing as P.W.8 has deposed that there was demand of motorcycle and Rs.50,000/- from the accused. Moreover, on one occasion she and her mother had given Rs.10,000/- to the CRA No.744-DB of 2010 -8- in-laws of her sister and sent her back to her in-laws house. Swaran Kaur has further specifically stated in her cross examination that no complaint has been filed by their family members against the accused for ill treating the deceased. Her husband had filed divorce case against Gagandeep (since deceased) at Kurukshetra. The deposition of Swaran Kaur supports the version in the dying declaration given by Gagandeep that she was being ill treated by her in-laws house and Rs.10,000/- had been given to her in-laws. The fact that her husband had filed a divorce petition further proves that the relationship between Gagandeep and her husband were not cordial. In Indian Society, even though, the girl is not having cordial relationships with her husband, she will be sent back to her matrimonial house so that better sense prevails between the family members and they can rehabilitate happily. But in the present case, the in-laws of Gagandeep were driven by the greed of dowry and caused 100% burn injuries to the deceased, which led to her death on 09.09.2008. Here is a case, where the deceased had lost her father some years ago and her mother and sister had made strenuous efforts to support her relationship with her husband by giving her in-laws Rs.10,000/- on an earlier occasion.
Even though, the two prosecution witnesses i.e. P.W.9 Jarnail Singh and P.W.10 Baldev Singh have resiled from their statements and did not support the prosecution version that there was any demand of dowry by the accused from the family of Gagandeep, but this will not lend the prosecution case doubtful as the dying declaration made before the Magistrate on 04.09.2008 coupled with the fact that the death was due to 100% burn CRA No.744-DB of 2010 -9- injuries, as per MLR of the deceased (Ex.P22), goes to show another case where the innocent girl has been burnt to death by her close family members i.e. mother-in-law, brother-in-law, husband, aunty mother-in-law in a most brutal and inhuman manner. As per the site plan, the body was recovered from a room and not from the kitchen. The deceased was shifted to Karnal Hospital from Nilokheri on 04.09.2008. Before P.W.5 Shri Amit Garg, JMIC, Karnal, who was posted as Judicial Magistrate Ist Class, Karnal on that day, SI Janak Singh moved an application for recording statement of Gagandeep Kaur (Ex.P3). On receiving the application, he passed an order (Ex.P4) and proceeded to the hospital for recording statement of deceased. He put some general questions to Gagandeep and ascertained that whether she is fit to make statement. She had replied to all the questions. She was declared fit to make the statement as per the opinion of Dr. Amrit Pal Kaur (Ex.P7). After recording the statement, he again obtained opinion of Dr. Amrit Pal Kaur (Ex.P9) that patient remained fit while making the statement.
Dr. Amrit Pal Kaur was not examined to prove the certificates (Ex.P7 and Ex.P9) with regard to the condition of Gagandeep. This aspect has been dealt by Hon'ble the Supreme Court in a case of reported as Sohan Lal @ Sohan Singh & others Vs. State of Punjab (2003) 11 SCC 534, the Supreme Court considering the dying declaration recorded by the Naib Tehsildar-cum- Executive Magistrate and in which Doctor, who has given fitness certificate was not examined. The Court noticed as under:
"20. We are satisfied that the dying declaration (Ext.PN) was made by the deceased Kamlesh Rani and that there is no need to discard the CRA No.744-DB of 2010 -10- evidence of PW-6; that when she made the dying declaration she was in a fit mental condition to do so and was fully conscious of what she was saying. Irrespective of whether the endorsement of Dr. Dua upon Exhibit PM/1 has been proved in accordance with law or not, we find no reason to discard the dying declaration (Ext.PN)."
In another judgment reported as Ravi and another v. State of Tamil Nadu, (2004) 10 SCC 776, the question examined was state of mind of the declarant and the mode of attestation of the statement. The Court held to the following effect:
"4. ....this shows that judgment rendered by three-Judge Bench has been overruled by the decision of the Constitution Bench. Secondly, even the three-Judge Bench judgment of this Court in the case of Paparambaka Rosamma Vs. State of A.P. (1999) 7 SCC 695 does not help the appellants, as in that case in the dying declaration as well as in his evidence in court, the doctor simply said that the patient was conscious, but nowhere mentioned the mental condition of the victim. In the present case, the doctor, PW-7 has specifically stated in court that prior to recording of the dying declaration, the Magistrate asked him as to whether the patient was in a conscious state and if he could answer the questions put to him. The witness says that he told the Judicial Magistrate that the victim was fully conscious and he was in the state of answering the questions put to him. This being the position, on both the grounds, we do not find any substance in the first submission of learned Senior Counsel appearing on behalf of the appellants."
In Sher Singh & another Vs. State of Punjab (2008) 4 SCC 265, the Supreme Court has held that certificate of Doctor is essentially a rule of caution and the dying declaration can be said to be proved if the person recording it was satisfied that the deceased was in a fit state of mind. Same is the view reiterated in Sunder Singh Vs. State of Uttaranchal (2010) 10 SCC 611. Similar view was also taken by a Division Bench of this Court in CRA No.744-DB of 2010 -11- CRA No.876-DB of 2009 titled 'Surinder Singh & others Vs. State of Punjab' decided on 30.11.2012 in which one of us (Hemant Gupta, J.) was a Member.
In view of the law laid down in the aforesaid judgments, the dying declaration has been recorded after seeking the opinion of the Doctor to the effect that the deceased was fit to make a statement and non- appearance of the Doctor will not render the dying declaration recorded before the Judicial Magistrate without merit.
In the totality of circumstances, we are of the opinion that the charges against the appellants of culpable homicide amounting to murder have been made out. It is not a case of merely harassment on account of demand of dowry. Though the prosecution has failed to prove demand of dowry, but that fact will not absolve the appellants from the clutches of the law in the face of incriminating evidence on record i.e. the dying declaration which reflects the guilt of the appellants beyond any reasonable doubt and proving commission of an offence punishable under Section 302 IPC read with Section 34 IPC .
Consequently, the present appeal fails and is dismissed.
(HEMANT GUPTA) ( RITU BAHRI )
JUDGE JUDGE
February 20, 2013
G.Arora/Vimal