Punjab-Haryana High Court
Satish Kumar @ Babbu Son Of Om Parkash vs State Of Punjab on 9 July, 2013
Author: S.S.Saron
Bench: S.S.Saron
Murder Reference No. 06 of 2012 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Murder Reference No. 06 of 2012
State of Punjab
.........................Prosecutor
versus
Satish Kumar @ Babbu son of Om Parkash, resident of Village Kotli
Raulan, Tehsil and District Gurdaspur
.........................Accused-
Convict/Respondent
AND CRA NO.D-570-DB OF 2012 Date of decision: 09.07.2013 Satish Kumar @ Babbu son of Om Parkash, resident of Village Kotli Raulan, Tehsil and District Gurdaspur.
........................Appellant versus State of Punjab .................Respondent CORAM:HON'BLE MR. JUSTICE S.S.SARON HON'BLE MR. JUSTICE S.P.BANGARH Present:-Mr. S. S. Dhaliwal, Addl. Advocate General, Punjab for the prosecutor in Murder Reference No. 06 of 2012 and respondent in CRA No. D-570-DB of 2012.
Sunder Sham 2013.07.25 16:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 2- Mr. Vipin Mahajan, Advocate for the accused/convict in Murder Reference No. 06 of 2012 and appellant in CRA No. D-570-DB of 2012.
S.P.BANGARH, J Murder Reference No. 06 of 2012, titled State of Punjab v. Satish Kumar @ Babbu and Criminal Appeal No. D-570-DB of 2012, titled Satish Kumar @ Babbu v. State of Punjab, pertain to common impugned judgment of conviction and order of sentence, therefore, these shall be disposed of by this common judgment.
Smt Rekha (since deceased) in her statement Ex.PF/3 stated that her husband Satish Kumar (appellant herein) was telling her that he would not keep her. On 13.11.2009, he (appellant) came to the house at noon time for having meals. After having meals, he brought kerosene oil and a match box from outside and she (deceased) did not come to know about this. The appellant sprinkled kerosene oil on her and set her ablaze and himself went outside. She (deceased) tried to go outside, but fell inside. On hearing her cries, people gathered there and extinguished the fire. Her uncle came from the nearby village and removed her to the hospital. Aforementioned statement Ex.PF/3 of Rekha (deceased) was recorded by Mrs. Ranjeet Kaur, Judicial Magistrate Ist Class, Gurdaspur.
On 13.11.2009, Balwinder Singh SI of Police Station, Kahnuwan reached Civil Hospital, Gurdaspur, on receipt of information regarding the admission of Rekha (deceased) wife of the appellant with burn injuries. He moved application Ex.PA before the Sunder Sham 2013.07.25 16:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 3- doctor, whereon, the latter declared the injured-Rekha fit to make statement. He (Balwinder Singh SI) later moved an application Ex.PF before the Duty Magistrate for getting recorded the statement of the injured-Rekha. Thereupon, Mrs. Ranjeet Kaur, Judicial Magistrate Ist Class, Gurdaspur reached the hospital and after obtaining the opinion of the doctor that Rekha was fit to make statement, she recorded the statement Ex.PF/3 (supra) of Rekha.
Balwinder Singh SI moved application Ex.PF/1 before the Magistrate for obtaining the copy of the statement of the injured and he obtained the same and then, he made endorsement Ex.PF/2, thereon, and sent the same to the police station, where formal FIR was recorded. Later, Balwinder Singh SI inspected the place of occurrence. He recovered an empty bottle smelling kerosene oil and a match box that were seized vide memo Ex.PH. Later, he prepared the site plan Ex.PG with correct marginal notes, as also, recorded the statements of witnesses.
Later the investigation of this case was handed over to Jagir Singh ASI, who on 22.11.2009 received a request from Police Station City Gurdaspur regarding the death of Rekha. Thereupon, an entry was made in the daily diary register for enhancing the offence to under Section 302 IPC. He proved the copy of roznamcha Ex.PG. Then, he reached Civil Hospital, Gurdaspur alongwith Joginder Singh HC and Jaswinder Singh. Corpse of Rekha was lying in the mortuary. He prepared the inquest report Ex.PE on the corpse of Rekha and moved an application Ex.PC for getting conducted Sunder Sham autopsy on the corpse of Rekha. 2013.07.25 16:52 Appellant was arrested in this I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 4- case .
After completion of investigation, Station House Officer of Police Station Kahnuwan instituted police report under Section 173 of Code of Criminal Procedure (Cr.P.C - for short) against the appellant Satish Kumar @ Babbu before the learned Illaqa Magistrate to the effect that it appears that he has committed an offence punishable under Section 302 of the Indian Penal Code (IPC - for short).
On presentation of police report, copies of the documents as required under Section 207 Cr.P.C were furnished to the appellant Satish Kumar @ Babbu by the learned Illaqa Magistrate, who later committed the case to the Court of Session, where charge under Section 302 IPC was framed against the appellant, whereto, the latter, pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.
At the trial prosecution examined, as many as, seven witnesses who testified as under:-
PW-1 Dhan Dai testified that Rekha (deceased) was the daughter of her sister namely Parsini and was married with Satish Kumar @ Babbu (appellant). She further testified that due to strained relations, they got divorce after 1-1/2 years of the marriage. She further testified that on receipt of information, they reached at the house of the appellant and found that Rekha was lying in burnt condition. She also testified that Rekha (deceased) was gravid.
PW-2 Dr. Vijay Kumar testified that on 13.11.2009, Rekha (deceased) was admitted in Civil Hospital, Gurdaspur and on Sunder Sham application Ex.PA of the police and vide his endorsement Ex.PA/1, 2013.07.25 16:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 5- he declared Rekha (deceased) fit to make statement. He further testified that vide endorsement Ex.PB, he again opined that patient (Rekha-deceased) was fit to make statement when enquired into by the Judicial Magistrate Ist Class. He also testified that later, Magistrate recorded the statement Ex.PF/3 of Rekha (deceased) in his presence and at the end of the statement, he again gave a certification Ex.PB/1 that the patient (Rekha-deceased) remained conscious during the recording of the statement.
PW-3 Dr. Jaspreet Singh testified that he conducted autopsy on the corpse of Rekha aged 21 years and observed as under:-
"The whole body shows superficial to deep burns with the formation of yellowish green slough on the chest, abdominal wall on the inner aspect of thighs and arm pits. Foul smell was emanating from the body. Reddish lines of inflammation on some areas of the body. Skull hairs were burnt and burns were present on the skull. Blackish soot particle in the lung parenchyma. Uterus was bulky and measure 80 cm x 8 cm and was congested. On opening, 100 cc of amniotic fluid came out and a dead macerated male fetus measuring 33 cms present with the cord attached. The burns were 100 %".
According to Dr. Jaspreet Singh (PW-3) the cause of death was due to septicemia due to extensive burns, which were sufficient to cause death in the ordinary course of nature. He further testified Sunder Sham that all the injuries were ante mortem in nature and the time that 2013.07.25 16:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 6- elapsed between injuries and death was 7 days. He proved the copy of the autopsy report Ex.PD.
PW-4 Prem Chand also testified that the appellant was married with Rekha (deceased) about 3-4 years ago and there used to remain dispute between them. He testified that on 13.11.2009, he was in the fields sowing wheat, where he received message regarding Rekha (deceased). He reached at her house, where Rekha (deceased) was lying in burnt condition. He further testified that he arranged the conveyance and took her to Civil Hospital, Kahnuwan from where she was taken to Civil Hospital, Gurdaspur where she succumbed to her injuries. He further testified that police visited the spot in his presence and recovered an empty bottle and a match box and seized those vide memo Ex.PH.
PW-5 Balwinder Singh, who was the investigation officer of this case testified that on 13.11.2009, he was posted as Sub Inspector at Police Station Kahnuwan, where he received a request from Police Station City Gurdaspur mentioning, therein, that Rekha is admitted in Civil Hospital, Gurdaspur with burn injuries. Thereupon, he reached Civil Hospital, Gurdaspur and moved an application Ex.PA to know about the fitness of the injured (Rekha-deceased). He also testified that after the injured was declared fit, he moved an application Ex.PF before the Duty Magistrate to record the statement Ex.PF/3 of the injured (Rekha -deceased), who reached in the hospital and recorded the statement of the injured (Rekha- deceased). He again moved an application Ex.PF/1 before the Sunder Sham Magistrate for getting the copy of the statement Ex.PF/3 of the 2013.07.25 16:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 7- injured (Rekha - deceased). He obtained the copy of the statement and he made his endorsement Ex.PF/2, thereon, and the sent the same to the police station, where formal FIR was recorded.
He further testified that he inspected the place of occurence and recovered an empty bottle smelling kerosene oil and a match box, that were seized vide memo Ex.PH. He also testified that he prepared the rough site plan Ex.PG with correct marginal notes, as also, recorded the statements of the witnesses and, thereafter, the investigation of this case was handed over to Jagir Singh ASI.
PW-6 Jagir Singh ASI testified that on 22.11.2009, he was posted as ASI at Police Station Kahnuwan. On that day, he received a request from Police Station City Gurdaspur regarding the death of Rekha. He further testified that he made an entry in the daily diary register; enhancing the offence to under Section 302 IPC and he proved the copy of the roznamcha Ex.PG. He also testified that he reached the Civil Hospital, Gurdaspur along with Joginder Singh HC and Jaswinder Singh and found the corpse of Rekha lying in the mortuary. He testified that he prepared the inquest report Ex.PE on the corpse of Rekha (deceased) and he moved an application Ex.PC for getting conducted autopsy on the corpse of Rekha (deceased).
PW-7 Mrs. Ranjeet Kaur, Judicial Magistrate Ist Class testified that on 13.11.2009, she was posted as Judicial Magistrate Ist Class, Gurdaspur, on which date, police moved an application Ex.PF for recording the statement of the injured - Rekha (deceased) and on receipt of application, she went to the hospital to record the Sunder Sham statement after making her endorsement Ex.PF/1. 2013.07.25 16:52 She further I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 8- testified that she reached hospital and asked the doctor on duty to report about the condition of the patient (Rekha) vide her endorsement Ex.PF/2. The doctor declared the patient (Rekha) fit to make statement vide his endorsement Ex.PB and, thereafter, she herself ascertained about the fitness of the injured-Rekha (deceased) by putting her questions and when felt satisfied about her fitness, she recorded her statement Ex.PF/3.
She further testified that she obtained left thumb impression of the injured-Rekha and the questions put to the injured-Rekha were also recorded in the said statement and after recording the statement Ex.PF/3, she obtained the certificate of the doctor Ex.PB/1 that patient remained conscious during recording of the statement. She also testified that, thereafter, she gave her certificate Ex.PF/4 regarding the recording of the statement of the injured-Rekha (deceased) and the police applied to get the copy of the statement Ex.PF/3 and she made her endorsement Ex.PF/5.
After tendering the scaled site plan Ex.PF, prosecution evidence was closed. After the closure of prosecution evidence, appellant was examined under Section 313 Cr.P.C., wherein, he denied the allegations of the prosecution, pleaded innocence and false implication in this case.
Appellant was called upon to enter in defence, but he closed the same without examining any witness in defence.
After hearing both the sides, as also after perusing the evidence and documents on record, the learned trial Court vide Sunder Sham impugned judgment of conviction, convicted the appellant for 2013.07.25 16:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 9- commission of offence punishable under Section 302 IPC and vide impugned order of sentence, sentenced him to death. Aggrieved, thereagainst, the appellant, who was accused before the learned trial Court has come up in this appeal with prayer for acceptance, thereof, and for his acquittal of the charge under Section 302 IPC, that was framed against him by the learned trial Court and latter, also sent Murder Reference No. 06 of 2012 under Section 366 Cr.P.C for confirmation of death sentence that was imposed upon the appellant Satish Kumar @ Babbu.
Learned Additional Advocate General, Punjab contended that the learned trial Court rightly convicted and sentenced the appellant vide impugned judgment of conviction and order of sentence by placing reliance upon dying declaration Ex.PF/3 made by the deceased, that was recorded by the Judicial Magistrate Ist Class, which could not be disbelieved.
On the other hand, learned counsel for the appellant contended that the dying declaration has not been corroborated by any other witness, therefore, it is highly unsafe to base conviction upon the appellant on the basis of dying declaration. He also contended that although the deceased (Rekha) was gravid, she did not make any effort to run away and that must make the prosecution story doubtful. Reliance was also placed upon Shakuntla v. State of Haryana, 1987 (2) RCR (Criminal) 71; wherein, it was held that if the old lady was out to kill her, deceased Usha Rani could not possibly have any respect for her and on the other hand was bound Sunder Sham 2013.07.25 16:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 10- to be desperate in saving her life, particularly when she was pregnant too. A mother is most attached to her child and goes to any extent to save the life to the child, even when he is in the womb. Learned counsel for the appellant also contended that since the deceased had suffered 100% burn injuries, she was not in a position to fix her left thumb impression on the dying declaration and on this ground alone, the same is required to be repelled.
So, learned counsel for the appellant contended that the impugned judgment of conviction and order of sentence may be set aside and the appellant may be acquitted of the charge by according him benefit of doubt.
We have heard learned counsel for the appellant and learned Additional Advocate General for the respondent and perused the record of the learned trial Court with their assistance.
Indubitably, the appellant is the husband of Rekha (deceased). They had been living together in a house at the place of occurrence. Possibly, no one else could see the occurrence that had taken place inside the house of the appellant and the deceased (Rekha). There is nothing on the record that someone else than the deceased (Rekha) had witnessed the occurrence. In these circumstances, there was no occasion for the prosecution to get the dying declaration corroborated through any other evidence. The question that would emerge is that whether the dying declaration can be relied upon for basing conviction upon the appellant.
Hon'ble Supreme Court of India in Parbin Ali and another Sunder Sham 2013.07.25 16:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 11- v. State of Assam, 2013 AIR SC 542, held that the conviction can be founded solely on the basis of dying declaration, if the same inspires full confidence. It has also been observed that the conviction can be recorded on the basis of dying declaration alone, if the same is wholly reliable, but in the event there exists any suspicion as regards the correctness or otherwise of the said dying declaration, the courts, in arriving at the judgment of conviction, shall look for some corroborating evidence. It was also observed that the Court, in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration, looks up to the medical opinion. It was also observed that where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
It was also observed that a dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. It was also observed that mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous and it is the duty of the court to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. It was also observed that when it is not borne Sunder Sham out from the evidence of the doctor that the injuries were so grave 2013.07.25 16:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 12- and the condition of the patient was so critical that it was unlikely that he could make any dying declaration, there was no justification or warrant to discard the credibility of such a dying declaration.
In this judgment the accused was convicted on the basis of oral dying declaration of deceased made before four close relations. They stated that deceased was in a position to speak when he made the statement. It was observed that in the absence of any real discrepancy or material contradiction or omission and additionally non cross-examination of the doctor in this regard makes the dying declaration absolutely credible and the conviction based on the same really cannot be faulted.
Hon'ble Supreme Court of India in Ranjit Singh and Co. v. State of Punjab, 2006 (13) SCC 130, also held that dying declaration, can be sole basis for conviction, if reliable. If suspicious, Court shall look for some corroborating evidence.
In Munnu Raja and another v. State of M.P., 1976 AIR (SC) 2199, Hon'ble Supreme Court of India held that statement by victim recorded as FIR can be treated as dying declaration and such statement is admissible under Section 32 (a) of Evidence Act and corroboration is not necessary. It was also held that law does not require that the maker of the dying declaration must cover the whole incident or narrate the case history.
In Paniben v. State of Gujarat, 1992 AIR (SC) 1817; Hon'ble Supreme Court of India held that there is neither rule of law nor of prudence that dying declaration cannot be acted upon without Sunder Sham 2013.07.25 16:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 13- corroboration. It was also observed that if the Court is satisfied that the dying declaration is true and voluntary, it can base conviction on it, without corroboration. However, Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination.
In Puran Chand v. State of Haryana, 2010 (91) AIC 226; Hon'ble Supreme Court of India held that a dying declaration which has been found to be voluntary and truthful and which is free from any doubts can be the sole basis for convicting the accused. It was also held that it is extremely difficult to reject a dying declaration merely because there are few factual errors committed, therein. It was also observed that a dying declaration, which has been found to be voluntary and truthful and which is free from any doubts can be the sole basis for convicting the accused.
Hon'ble Supreme Court of India, in State of Uttar Pradesh v. Ram Sagar Yadav and others, 1985 (1) RCR (Criminal) 600; held that as a matter law, a dying declaration can be acted upon without corroboration. There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the Court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the dying declaration.
Sunder Sham 2013.07.25 16:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 14- In Krishan v. State of Haryana, 2013 (1) Recent Apex Judgments (RAJ) 475; Hon'ble Supreme Court of India upheld the conviction of the accused solely on the basis of dying declaration, that was found to be reliable and truthful. In the declaration, deceased did not unnecessarily involve the other family members of the accused. On the contrary, deceased specifically stated that her father-in-law and sister-in-law were always helping her and, in fact, even tried to douse the fire. She did not even make any allegation against her mother-in-law. She only attributed the acts of cruelty and beating to her husband and that, too, when he was under the influence of liquor. It was also held that dying declaration was recorded by the SDJM in his hand writing after questioning the deceased. Opinion of the doctor was obtained and deceased remained fit to make statement during the course of recording the dying declaration. Declaration was signed by the SDJM and thumb impression of the deceased was taken, which was duly identified by the Investigating Officer In view of this judgment, it must follow that, if a dying declaration is made by a person, who was conscious and the same was recorded after obtaining certificate of fitness from the doctor, and nothing is found that the same was the result of tutoring or prompting, the same cannot be ignored. Therefore, in the case in hand, we have to see as to whether the injured-Rekha (deceased) was fit to make the dying declaration. It may be noticed that Dr. Vijay Kumar (PW-2) declared the injured fit to make statement at 5.30 p.m. Sunder Sham 2013.07.25 16:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 15- on 13.11.2009, when application Ex.PA was moved before him by Balwinder Singh SI (PW-5). Both these witnesses were subjected to searching cross-examination by the learned counsel for the appellant before the learned trial Court, but the long cross- examination failed to elicit anything worth the name which could possibly cause any dent in their testimonies. From the cross- examination of PW-2 (Dr. Vijay Kumar), it is not made out that the deceased (Rekha) was not in a fit state of mind to suffer statement.
Even, PW-7 Mrs. Ranjit Kaur, Judicial Magistrate Ist Class reached in the hospital at 5.45 p.m. when an application was moved before her for recording statement of the injured-Rekha. On arrival in the hospital, she did not suo motto started recording the statement of the injured-Rekha (deceased). On the contrary, she sought the opinion of the doctor regarding the fitness of the injured-Rekha (deceased) to make statement and vide order Ex.PF/2, Dr. Vijay Kumar (PW-2) again declared that patient was conscious, cooperative, well oriented and fit to give statement. The matter did not end her. The learned Judicial Magistrate herself ascertained whether patient was fit to make statement by putting her questions and when she felt satisfied that injured-Rekha was fit to make statement, she recorded the statement Ex.PF/3 of the injured-Rekha.
At the end of the statement Ex.PF/3, the doctor again gave a certificate that "patient remained conscious, fit during her statement". Thereafter, Judicial Magistrate again gave a certificate Ex.PF/4 that the statement contained all the true facts stated by the Sunder Sham injured-Rekha, that were read over to her and she accepted the 2013.07.25 16:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 16- same and put her left thumb impression.
In these circumstances, when doctor remained present with the Judicial Magistrate at the time of recording the statement of the injured-Rekha and he certified that the injured-Rekha was fit to make statement, as also she remained fit to make statement during recording, thereof, it must follow that the injured was fit to make statement.
The dying declaration Ex.PF/3, wherein, deceased (Rekha) stated that it was the appellant who poured kerosene oil on her and set her ablaze, was made by her in a fit state of mind and there is nothing on the record to indicate that she was tutored or prompted at any time, and the same is from any doubt; and as such, the same must be acted upon. It may be mentioned here that Judicial Magistrate Ist Class who appeared as PW-7 was cross-examined at length, but the cross-examination failed to elicit anything worth the name which could possibly cause any dent in her testimony. In other words, it is not made out that when PW-7 (Mrs. Ranjit Kaur, JMIC) recorded the statement Ex.PF/3 of the injured-Rekha, the latter was not in a fit state of mind or she was tutored or prompted by any one else.
From the dying declaration Ex.PF/3, it is made out that the appellant put the deceased on fire by pouring kerosene oil on her. There used to remain quarrel between the appellant and the deceased (Rekha). It is made out from the dying declaration Ex.PF/3 that the appellant was telling the deceased that he shall not keep Sunder Sham her. When the appellant was not ready to keep her, he thought of 2013.07.25 16:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 17- getting rid of her by putting her on fire. She (Rekha-deceased) had 100% burns. The appellant himself was not injured. If it would have been the case of suicide, in that event, the appellant would have made effort to extinguish the fire and in that process, he would have also been injured.
It is no doubt true that the deceased (Rekha) was carrying a child in her womb at the time of her death. It is the contention of the learned counsel for the appellant that the deceased should have made effort not only to save herself, but to her child. Regarding this contention, suffice it to say that the appellant came from outside and took the meal, as stated by the deceased (Rekha), thereafter, he again went outside and brought kerosene oil and a match box, that she did not notice, and therefore, she got no opportunity to save herself. Therefore, it cannot be said that her conduct was unnatural.
The learned trial Court rightly observed that Shakuntla's case (supra), does not apply in the case in hand. According, to PW-3 (Dr. Vijay Kumar), there were 100% burns on the corpse of the deceased (Rekha). Mrs. Ranjit Kaur, JMIC (PW-7) obtained left thumb impression of the deceased (Rekha) and she clarified that right thumb impression on the dying declaration Ex.PF/3 was not possible due to burns. So, when there were 100% burns on the deceased (Rekha), the learned trial Court rightly observed that if doctor found 100% burns, it does not mean that the entire body had peeled off and even the skin of left thumb was not available. Therefore, in these circumstances, learned trial Court rightly Sunder Sham observed that the statement of PW-7 (Mrs. Ranjit Kaur, JMIC) to the 2013.07.25 16:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 18- effect that she obtained the left thumb impression of the injured- Rekha (deceased) on her dying declaration Ex.PF/3, as skin was there, cannot be doubted.
The contention of the learned counsel for the appellant that there was no ink mark on the thumb of the deceased (Rekha), as per testimony of Dr. Jaspreet Singh (PW-3), is also devoid of merit, as the statement Ex.PF/3 of the deceased (Rekha) was recorded on 13.11.2009 while autopsy was conducted on 22.11.2009 and within this period ink on the left thumb of the deceased (Rekha) would have evaporated, therefore, no benefit can be derived by the appellant from this.
It was also contended on behalf of the appellant that, as per dying declaration Ex.PF/3, injured-Rekha fell inside, while according to Dhan Dai (PW-1), injured-Rekha was lying outside the house. This contradiction cannot make the prosecution case doubtful in any manner, as after the incident, injured-Rekha might have been brought outside the house for taking her to the hospital, when Dhan Dai (PW-1) reached at the place of incident. The testimony of Dhan Dai (PW-1) to the effect that the appellant and the deceased (Rekha) had got divorce after 1 1/2 years of the marriage is incorrect and this statement cannot make the case of the prosecution doubtful, especially when the appellant has not placed on record any decree of divorce regarding dissolution of his marriage with the deceased (Rekha), as also when he (appellant) has not brought any evidence in defence that he and Rekha (deceased) were living in separate Sunder Sham houses.
2013.07.25 16:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 19- Learned counsel for the appellant also placed reliance upon Ramilaben Hasmukhbhai Khristi and another v. State of Gujarat, 2002 (3) RCR (Criminal) 786; wherein, Hon'ble Supreme Court of India set aside the conviction by holding that dying declaration could not be relied. There were four dying declarations in this case. It was held that maker of the dying declaration is not subjected to cross- examination. It is for the Court to see that dying declaration inspires full confidence.
We fail to understand, as to how this judgment can be made applicable in the case in hand, as there is only one dying declaration in the case in hand, while there were four dying declarations in Ramilaben Hasmukhbhai Khristi's case (supra).
Learned counsel for the appellant also placed reliance upon Surinder Kumar v. State of Haryana, 2011 (4) RCR (Criminal) 658; wherein, Hon'ble Supreme Court of India, acquitted the accused on the ground that during the recording of the statement by the Magistrate, doctor did not remain present. This judgment is not applicable in the case in hand. Besides, the dying declaration in the case of this judgment (supra) was recorded by the Executive Magistrate, while the dying declaration in the case in hand was recorded by the Judicial Magistrate Ist Class (PW-7) in the presence of Dr. Vijay Kumar (PW-3).
Learned counsel for the appellant also placed reliance upon K. Ramachandra Reddy and another v. The Public Prosecutor, 1976 AIR (SC) 1994;, wherein, Hon'ble Supreme Court of India held Sunder Sham 2013.07.25 16:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 20- that Court must be satisfied that the deceased was in a fit state of mind to make the statement. This judgment also does not apply in the case in hand.
Learned counsel for the appellant also placed reliance upon Panneerselvam v. State of Tamil Nadu, 2008 (3) RCR (Criminal) 54; wherein, Hon'ble Supreme Court of India set aside the conviction based on dying declaration, as the same was recorded in the presence of the relatives of the deceased. This judgment is inconsequential to the appellant, as the relatives of the deceased were not present at the time of recording the statement Ex.PF/3 in the case in hand.
So, the fact remains that dying declaration (Ex.PF/3) was made by Rekha (deceased) voluntarily when she was in a fit state of mind. Expecting her death, she would not level false allegation against the appellant, who was her husband. Thus, the dying declaration (Ex.PF/3) of the deceased (Rekha) must be relied upon and on the basis, thereof, it must be held that it was the appellant who poured kerosene oil on her and set her ablaze and sequelly, she succumbed to the 100% burn injuries. Learned trial Court rightly held the appellant guilty of commission of offence punishable under Section 302 IPC for intentionally committing the murder of his wife Rekha.
There is, thus, no illegality or impropriety in the impugned judgment of conviction, that is upheld and affirmed.
Learned counsel for the appellant then contended that the Sunder Sham 2013.07.25 16:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 21- latter is from the poor strata of the society, who is not a previous convict and is labourer by occupation, therefore, imposition of death sentence is quite harsh. It was a quarrel between the wife and the husband that resulted into the death of wife (Rekha-deceased). He further contended that opportunity may be granted to the appellant to reform himself and imposition of minimum sentence prescribed under Section 302 IPC shall be a condign punishment. He also contended that the case of the appellant does not fall in the category of rarest of rare cases, so he contended that the death sentence may be commuted to the imprisonment for life.
On the other hand, learned Additional Advocate General, Punjab contended that the impugned order of sentence, whereby, sentence of death has been imposed upon the appellant may be upheld and affirmed, as the same does not suffer from any illegality or impropriety.
We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties and we find that the present case does not fall within the category of rarest of rare cases. The learned trial Court wrongly described it as a rarest of rare cases. The appellant is not a previous convict. He is a poor person and labourer by occupation. Imposition of death sentence shall be very harsh punishment for him. He should be given an opportunity to reform himself to become a better human being through his detention in jail. In the present case, imposition of minimum sentence prescribed under Section 302 IPC shall be a Sunder Sham condign punishment 2013.07.25 16:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Murder Reference No. 06 of 2012 - 22- Therefore, the death sentence imposed upon the appellant is set aside and is reduced to sentence of imprisonment for life. So, the appellant is sentenced to undergo imprisonment for life and to pay a fine of `2,000/- and in default of payment of fine, he shall further undergo rigorous imprisonment for six months. The period of imprisonment already undergone by the appellant during investigation, trial and pendency of the appeal, shall be set of against the substantive sentence of imprisonment.
Resultantly, except for this modification in the impugned order of sentence, the appeal fails, and is, hereby, dismissed.
Murder reference No.06 of 2012 is declined.
(S.P. BANGARH) (S.S. SARON)
JUDGE JUDGE
09 July, 2013
sham
1. To be referred to the Reporters No/Yes
2. Whether the judgment should be reported in the Digest? No/Yes.
Sunder Sham 2013.07.25 16:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh