Punjab-Haryana High Court
Ajit Singh And Another vs State Of Punjab on 25 April, 2013
Author: Inderjit Singh
Bench: Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No.D-771-DB of 2006
Date of Decision: April 25, 2013
Ajit Singh and another
...Appellants
VERSUS
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE M.JEYAPAUL
HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Ms.Divya Sharma, Advocate
Legal Aid Counsel, for the appellant.
Mr.B.S.Bhalla, Addl. Advocate General, Punjab
for the respondent-State.
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INDERJIT SINGH, J.
The present appeal has been filed by the appellants against the judgment of conviction and order of sentence dated 05.09.2006, passed by the Sessions Judge, Fatehgarh Sahib, whereby they were held guilty and convicted and sentenced to undergo imprisonment for life and to pay a fine of ` 10,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of six months each, under Section 302 IPC. They were further convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of ` 5,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of four months each, under Section 316 IPC. Both the sentences were ordered to run concurrently.
Crl. Appeal No.D-771-DB of 2006 -2-
The brief facts of the prosecution case are that a DDR was got registered by Mohinder Kaur with police station, Amloh at 3.10 P.M. on 05.06.2004. She got recorded in the DDR that her daughter Gurmit Kaur was married with Sukhwinder Singh son of Ajit Singh about 9-10 months ago. She also stated that in these days Gurmit Kaur was having pregnancy of 6-7 months. Her (complainant) another daughter had been married at village Tosa. On last night i.e. on 04.06.2004 at about 9.00/9.15 P.M., it had come to the notice of her son-in-law Mewa Singh (husband of another daughter) that Gurmit Kaur who married at village Kanjari had some family dispute between them. On that day i.e. on 05.06.2004, Mewa Singh, son-in- law of complainant had come to her to inform about the same. Later on, it had come to her notice that her daughter Gurmit Kaur was admitted at Rajindra Hospital, Patiala. So, they had gone directly to Rajindra Hospital and saw that her daughter had been admitted there due to burn injuries. Thereafter, ASI Harjinder Singh along with CII Lachhman Singh moved an application in the Court for recording the dying declaration. The Judicial Magistrate recorded the dying declaration of Gurmit Kaur in Rajindra Hospital, Patiala at 5.20 P.M. on the same day, which is reproduced as under:-
"My mother-in-law and father-in-law were sitting in the street and they demanded the meal from her. I told that it is not good for me to give meal to you in the way. They started abusing me. Thereafter, my mother-in-law and father-in-law set ablaze to me. Thereafter, I had been sent to Khanna and from there I had sent further."
On 08.06.2004, ASI Harjinder Singh produced the said Crl. Appeal No.D-771-DB of 2006 -3- statement of Gurmit Kaur before Inspector Balwinder Singh, SHO which was written by Illaqa Magistrate. After making endorsement, statement was sent to police station, Amloh for registration of the case and then on its basis, FIR was recorded. An intimation was received from Rajindra Hospital that Gurmit Kaur had expired in the intervening night of 06/07.06.2004. On 08.06.2004, SHO Balwinder Singh along with ASI Harjinder Singh went to Rajindra Hospital, Patiala. Dead body was lying in the dead house. Inquest report was prepared. Statements of the witnesses were recorded. Then the Investigating Officer inspected the spot. Nobody was present in the house of Ajit Singh and they returned to the police station. On 13.06.2004, village Sarpanch Balwinder Singh produced both the accused before the Investigating Officer and they were arrested. On interrogation, accused Ajit Singh made disclosure statement regarding concealing of one plastic tin and in pursuance of his disclosure statement he got recovered the same. Similarly, accused Malkiat Kaur, got recovered match box in pursuance of her disclosure statement. Rough site plans of the place of recoveries were prepared. After necessary investigation, challan was presented against the accused-appellants before the Court.
On presentation of challan, copies of challan and other documents were supplied to the accused-appellants under Section 207 Cr.P.C. Finding prima facie case, the appellants were charge- sheeted under Sections 302 read with Section 34 IPC and under Section 316 IPC, to which they pleaded not guilty and claimed trial. Crl. Appeal No.D-771-DB of 2006 -4-
In support of its case, prosecution examined PW-1 Dr.Kuldeep Singh, Medical Officer, who mainly deposed regarding conducting of post-mortem examination on the dead body of Gurmit Kaur on 08.06.2004 along with Dr.S.S.Oberoi. He deposed that 'there was a male foetus measuring 38 centimeter about 7 to 8 months of intra-urine age was present in the uterus. According to their opinion, the cause of death was shock due to burns which were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. Percentage of burns was about 100 percent.' The doctor also opined that the probable time between burns and death was two days and between death and post-mortem examination was about 36 to 48 hours. PW-2 Tarsem Lal, Patwari mainly deposed regarding preparing of scaled site plan Ex.PD. PW-3 ASI Harjinder Singh deposed regarding recording the DDR, copy of which is Ex.PE. He also deposed regarding filing application Ex.PF before the Illaqa Magistrate at Patiala, who went to Rajindra Hospital and recorded the statement of Gurmit Kaur. He also stated that at the time of recording the statement of victim Gurmit Kaur (now deceased), she was in fit condition and fully conscious and mentally fit to make statement. Statement is Ex.PW3/G. A request was made by Inspector Balwinder Singh, SHO to obtain the copy of statement of Gurmit Kaur recorded under Section 164 Cr.P.C. The copy was sent to Illaqa Magistrate, at Amloh. On 08.06.2004, the said copy of statement was obtained from the Illaqa Magistrate, at Amloh and on the basis of that statement, FIR was lodged. He also deposed regarding getting conducted post- Crl. Appeal No.D-771-DB of 2006 -5- mortem examination on the dead body of Gurmit Kaur. He also joined the police party of SHO Balwinder Singh and deposed regarding investigation conducted in the present case. PW-4 Kuldip Singh mainly deposed regarding identifying the dead body of Gurmit Kaur. PW-4A Sh.S.S.Mann, Judicial Magistrate Ist Class, Patiala deposed that on police application filed by ASI Harjinder Singh, he recorded statement of Gurmit Kaur Ex.PW3/G at Rajindra Hospital, Patiala. Opinion of the doctor was obtained as to whether Gurmit Kaur was fit to make statement. The opinion is Ex.PW4/A. Thereafter, toe impression of Gurmit Kaur was obtained as her fingers and thumbs were unable to form impression as per the opinion of the doctor. He further deposed that he also satisfied himself that she was able to understand question put to her and give proper answers. After recording the statement, the Judicial Magistrate requested the Medical Officer Dr.Subhash to certify that Gurmit Kaur remained fit throughout the time her statement was recorded, but he refused to certify the same. Thereafter, he called ASI Harjinder Singh and Constable Lachhman Singh to call any senior doctor on duty at that time. PW-5 Inspector Balwinder Singh, is the Investigating Officer, who mainly deposed regarding investigation conducted in the present case.
At the close of prosecution evidence, the accused- appellants were examined under Section 313 Cr.P.C. and they denied the correctness of the evidence and pleaded themselves as innocent. Accused-appellant Ajit Singh stated that Gurmit Kaur received serious Crl. Appeal No.D-771-DB of 2006 -6- burn injuries in accidental fire. He was not present at the house at the relevant time. He and his other family members took Gurmit Kaur in serious injured condition to Hospital for her treatment but she died there. He further stated that he has been falsely implicated in this case at the instance of mother of the deceased Gurmit Kaur namely Mohinder Kaur, on suspicion, who after coming to know about the truth decided to drop the proceedings against them. Gurmit Kaur made no dying declaration before Sh.S.S.Mann, JMIC, Patiala on 05.06.2004 nor she was in her senses. Accused-appellant Malkiat Kaur had also taken the same plea. In defence, accused-appellants examined DW-1 Balwinder Singh, Sarpanch as well as Lambardar of village Kanjari. He mainly deposed that accused Malkiat Kaur and some other ladies were taking fodder from his fields. Some persons from village informed him as well as to Malkiat Kaur about the incident of fire and on receipt of information, Malkiat Kaur and he, rushed to the place of occurrence. Ajit Singh was not there. He was called from Khanna where he was on his duty with some transporter. Thereafter, accused person and other family members took Gurmit Kaur in burn condition to hospital, where Gurmit Kaur died. He further deposed that he produced the accused before the police in this case. DW-2 Amar Nath mainly produced the bed head ticket. DW-3 Dr.Subhash stated that in the month of June 2004, Gurmit Kaur was admitted at 1.00 A.M. during the intervening night of 04/05.06.2004 with burn injuries. The entries in the bed head ticket are in his hands and are on the basis of information submitted to him by the patient as well as Crl. Appeal No.D-771-DB of 2006 -7- on the observations made by him during medico-legal examination. One Amar Singh was the person who brought Gurmit Kaur at the relevant time. She was declared dead at 5.45 P.M on 06.06.2004. The patient had told him that she had received injuries due to stove- burst while she was preparing food. In cross-examination, he stated that he did not give the certificate that the patient had remained fit throughout when her statement was recorded and he had refused to give that certificate because the statement of patient was being changed. He stated that in this case, the patient was conscious and was able to speak. DW-4 Mohinder Kaur mainly deposed that Sukhwinder Singh, her son-in-law has also died after the death of her daughter Gurmit Kaur. She also deposed that Gurmit Kaur never complained regarding any maltreatment given to her in her in-laws' house. DW-5 Amar Singh stated that he took Gurmit Kaur with burn injuries to Rajindra Hospital, Patiala for her admission and treatment. He took the patient Gurmit Kaur from Civil Hospital, Khanna to Rajindra Hospital, Patiala as she was referred by the doctor. He further deposed that he had a talk with the patient during the journey from Khanna to Patiala and she told him that she had received burn injuries on her person due to bursting of stove while preparing food for the family at home.
On the basis of the evidence produced by the prosecution, accused-appellants were convicted and sentenced as stated above by the Sessions Judge, Faridabad. It is reported by learned counsel appearing for the appellants that first accused/appellant Ajit Singh had Crl. Appeal No.D-771-DB of 2006 -8- died. Learned additional Advocate General, Punjab also verified from Superintendent, Security, Jail, Nabha and informed this Court that Ajit Singh had, in fact, died. In view thereof, criminal appeal qua Ajit Singh abates.
At the time of arguments, learned counsel for the appellant argued that in the present case there are three dying declarations, one made to DW-3 Dr.Subhash, other to DW-5 Amar Singh and third to PW-4A, Illaqa Magistrate. Therefore, she argued that a reasonable doubt exists in the prosecution case and on the basis of dying declaration, accused-appellant cannot be convicted. Learned counsel for the appellant further argued that the mother of deceased has appeared as DW-4 in this case and has supported the defence case. She next argued that the dying declaration is fabricated one. The doctor has refused to give the certificate that patient remained fit during recording of the statement. Learned counsel for the appellant further argued that FIR in the present case has been registered on 08.06.2004 and there is unnecessary delay in recording the FIR. Therefore, she argued that a reasonable doubt exists in the prosecution case and the appeal should be accepted.
On the other hand, learned Addl. Advocate General, Punjab for the respondent-State has argued that case of the prosecution has been duly proved. It is settled law that only on the basis of dying declaration, accused can be convicted. He argued that there is no exaggeration or tutoring or contradictions in the dying declaration. The dying declaration has been given voluntarily without Crl. Appeal No.D-771-DB of 2006 -9- any pressure to the Illaqa Magistrate. There is nothing on the record to show that dying declaration is fabricated one. The patient remained conscious. The history given by DW-3 Dr.Subhash and statement of DW-5 Amar Singh that Gurmit Kaur disclosed to him that she received the injuries due to stove burst, cannot be believed. Learned State counsel further argued that mother of the deceased has not supported the defence version as in cross-examination, she has stated that she has got recorded the DDR correctly. He further argued that the delay in recording the FIR occurred, as the copy of the dying declaration recorded on 05.06.2004 was sent by the Illaqa Magistrate to Amloh Court by post and then it was received from the Amloh Court and then the FIR was registered. However, as the FIR was registered on the basis of dying declaration, therefore, in this case, he argued that there is no affect of delay. He argued that there being no merit, the appeal should be dismissed.
We have gone through the evidence on record minutely and very carefully and have heard learned counsel for the appellant and learned Addl. Advocate General, Punjab for the respondent-State.
From the evidence on record, we find no merit in the arguments of the learned counsel for the appellant. The occurrence took place during the night time on 04.06.2004 when Gurmit Kaur refused to give meal in the way and a quarrel took place. As per record, she was admitted in Rajindra Hospital, Patiala at 1.00 A.M. The mother of Gurmit Kaur was informed by her another son-in-law Mewa Singh and then she came to Amloh and got recorded the DDR. Crl. Appeal No.D-771-DB of 2006 -10- At that time, Gurmit Kaur was admitted in Rajindra Hospital, Patiala. After recording the DDR, ASI Harjinder Singh along with other police officials went to Patiala and filed application for recording the dying declaration before the Illaqa/Duty Magistrate. Then, Sh.S.S.Mann, Judicial Magistrate Ist Class, Patiala went to Rajindra Hospital, Patiala and sought opinion of DW-3 Dr.Subhash and then recorded the statement. Sh.S.S.Mann, Judicial Magistrate has appeared in this case as PW-4A and deposed that he got himself satisfied also regarding the fitness of the injured. He has also deposed that her statement was voluntarily. After recording of the dying declaration DW-3 Dr.Subhash refused to give the certificate that patient remained fit during recording of the statement on the ground that patient had changed the statement. Even Dr.Subhash while appearing as DW-3, in cross-examination deposed that he refused to give the certificate as patient changed the statement. DW-3 Dr.Subhash has no concern with the statement. He was simply to give the certificate regarding the fitness. Even in cross-examination Dr.Subhash has stated that patient was conscious and was able to speak. There is no reason or ground to fabricate the dying declaration by the Illaqa Magistrate. There is nothing on the record to disbelieve Illaqa Magistrate. Therefore, from the evidence on record, we find that the dying declaration recorded by Sh.S.S.Mann, Judicial Magistrate, is as per law and he recorded the same correctly and further patient Gurmit Kaur was in fit condition to give the statement.
Further, we find that there is nothing on the record to show Crl. Appeal No.D-771-DB of 2006 -11- that Gurmit Kaur was tutored to give this statement. Even there is no such suggestion that her statement was tutored one by her mother or by some other person to give the statement etc. Further, we find that there is no exaggeration in the statement of Gurmit Kaur. If she has to implicate falsely, then she might have also levelled allegations against her husband but there are no such allegations made by her in the dying declaration. Similarly, she had not levelled any allegation regarding the demand of dowry etc. or any mal-treatment or harassment by her in-laws, in the dying declaration. It is also the case of the prosecution as well as of the defence that firstly Gurmit Kaur was taken to Civil Hospital, Khanna and then brought to Rajindra Hospital, Patiala. This fact is also mentioned in the dying declaration that she was earlier taken to Khanna. Therefore, the dying declaration, in no way, is contradictory to prosecution version.
Further, from the evidence on record, we find that Mohinder Kaur got recorded the DDR Ex.PE and she appeared as DW-4 in the present case but in cross-examination, she stated that she had lodged the report at Amloh after her daughter received burn injuries and she had correctly lodged report with the police. Therefore, in no way, it can be held that DW-4 Mohinder Kaur has supported the defence version. It is nobody's case that Gurmit Kaur ever reported or made complaint regarding mal-treatment in her in- laws' house. As regarding the statement of DW-3 Dr.Subhash, from his conduct itself, it cannot be believed that the patient told him that she received the injuries due to bursting of stove. There is no Crl. Appeal No.D-771-DB of 2006 -12- corroborating evidence to support this alleged summary in the bed- head ticket. Similarly, the statement of DW-5 Amar Singh that Gurmit Kaur told him that he received burn injuries due to bursting of stove while she was preparing food, is also not supported and corroborated by any evidence. Even in the statement recorded under Section 313 Cr.P.C., the accused had not taken this plea that deceased received burn injuries due to bursting of stove. No pieces of stove etc. were found on the spot nor DW-5 Amar Singh has stated that he has seen any piece of stove at the spot. The defence statement as given by DW-1 Balwinder Singh that Malkiat Kaur was in the fields and cutting the fodder at the time of occurrence is also not believable. Generally, during the night time, no lady goes to fields for cutting fodder crop etc. The version given by the appellant that she accompanied the deceased to Khanna or to Rajindra Hospital, Patiala, is also not proved from any evidence on record. Rather, as per record, DW-5 Amar Singh brought Gurmit Kaur to Hospital. As per the statement of DW-5 Amar Singh, he took Gurmit Kaur firstly to Khanna and then to Patiala. The conduct of the appellant not accompanying the patient also goes against her to show her guilt.
Further, the delay in recording the FIR has been duly explained by the witnesses. Otherwise also, the delay, in no way, has any affect on the present case as the FIR was registered on the basis of dying declaration recorded by the Illaqa Magistrate on 05.06.2006. Therefore, in no way, delay has been used to concoct a false story.
Therefore, from the evidence on record, we find that Crl. Appeal No.D-771-DB of 2006 -13- version given by DW-3 Dr.Subhash and DW-5 Amar Singh regarding statement made by Gurmit Kaur before them, cannot be believed. The dying declaration recorded by the Judicial Magistrate is voluntarily without any tutoring and exaggeration nor it is contradictory to prosecution version. The dying declaration, therefore, can be relied upon.
In view of the above, we find that the prosecution has duly proved its case by leading cogent evidence beyond reasonable doubt and accused-appellant has been rightly convicted and sentenced by the learned trial Court. Accordingly, the judgment of conviction and order of sentence are upheld.
In view of the above, we find no merit in this appeal and the same is hereby dismissed.
As already discussed that appellant Ajit Singh has died during the pendency of the appeal, therefore, appeal qua him stands abated.
(M.JEYAPAUL) (INDERJIT SINGH)
JUDGE JUDGE
April 25, 2013
Vgulati