Punjab-Haryana High Court
Joginder Kaur And Anr vs State Of Punjab on 18 November, 2014
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
CRA No.D-26-DB-2010.
Date of decision: 18.11.2014.
Joginder Kaur & another
.....Appellants
Versus
State of Punjab
.....Respondent
CORAM:- HON'BLE MR. JUSTICE M.JEYAPAUL HON'BLE MR. JUSTICE DARSHAN SINGH
1. Whether Reporters of the local papers may be allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest? Present: Mr.Kanwaljit Sing, Senior Advocate with Ms.Gurdeep Kaur, Advocate for the appellants.
Mr.P.P.S. Thethi, Addl. A.G. Punjab.
DARSHAN SINGH J.
The present appeal has been preferred against the judgment dated 01.12.2009 vide which both the appellants have been held guilty and convicted for the offence punishable under Section 302 of the Indian Penal Code ('IPC' short) and the order of sentence of the same date, vide which both the appellants have been sentenced to undergo imprisonment for life and to pay fine of Rs.5000/- each. In default of payment of fine, they were ordered to undergo further rigorous imprisonment for a period of six months.
SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -2-
2. The sequence of events and catalogue of facts giving rise to this prosecution can be summed up as under:-
3. That on 1st March, 2008 a wireless message was received by Police Station Mehal Kalan, Distt. Barnala from the SHO Police Station City Barnala giving information that Inderpreet Kaur (deceased) has been admitted in Civil Hospital, Barnala with burn injuries. PW4 ASI Gurdit Singh along with his fellow police officials approached PW6 Shri Barinder Singh Ramana, the then learned Judicial Magistrate First Class, Barnala with a request Ex.PJ to record the statement of Inderpreet Kaur. The learned Judicial Magistrate recorded the statement of deceased Inderpreet Kaur Ex.PA and carried the same with him. Thereafter, ASI Gurdit Singh also sought the opinion of the doctor with regard to her fitness to make statement. She was declared fit to make statement by PW1 Dr.Parvesh Kumar and thereafter PW4 ASI Gurdit Singh also recorded the statement of deceased Inderpreet Kaur Ex.PD, wherein she stated that her marriage was solemnized about six years back with Jinder Pal Singh son of Ram Singh, resident of village Sehajra. A daughter aged about two and half years was born from the wedlock. About 15 days prior to the occurrence, their truck had met with an accident. Her husband and family members of her in-laws asked her to leave the house. She said as to where she should go. On 1st March, 2008 at about 10:00 a.m. Raj Kaur, wife of the elder brother of her husband, caught hold of her and her mother-in-law Joginder Kaur poured kerosene oil and set her ablaze with a match stick. She raised alarm. Her father-in-law and mother-in-law got SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -3- her admitted in Civil Hospital, Barnala for treatment. On the basis of the aforesaid statement of Inderpreet Kaur, initially the present case was registered under Section 307 read with Section 34 IPC and the investigation initiated.
4. ASI Gurdit Singh visited the spot. He took into possession a plastic can of kerosene oil and a match box by preparing the separate sealed parcels. Accused-appellant Joginder Kaur was arrested on 1st March, 2008. Inderpreet Kaur was referred to Government Medical College & Hospital, Sector-32 Chandigarh and remained under treatment there. On 8th March, 2008, a message was received from the said hospital that Inderpreet Kaur had expired. The offence punishable under Section 302 IPC was added. ASI Gurdit Singh visited Chandigarh and conducted the inquest proceedings. The postmortem examination on the dead body of Inderpreet Kaur was got conducted. Accused-appellant Raj Kaur alias Rajwinder Kaur was also arrested and on completion of investigation, the report under Section 173 of the Code of Criminal Procedure ('Cr.P.C.' for short) was presented in the Court.
5. The case was committed to the Court of Sessions for trial by the learned Judicial Magistrate vide order dated 03.07.2008. Both the accused-appellants were charge-sheeted for the offence punishable under Section 302 IPC to which they pleaded not guilty and claimed trial.
6. In order to substantiate its case, prosecution examined as many as seven witnesses.
7. After the closure of the prosecution evidence, both the SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -4- accused-appellants were examined under Section 313 Cr.P.C., wherein they pleaded that the husband of the deceased was addicted to intoxicants and used to earn meagre amount by working as a labourer. She was blessed with a daughter about 1- ¼ years earlier to her death. She was fed up with the habits of her husband as well as her poor financial position. That about 10-12 days prior to the occurrence their family members were returning after attending a marriage in a truck owned by the father-in-law of the deceased which met with an accident, as a result of which appellant Raj Kaur suffered injuries on her foot and was unable to walk. The husband of Joginder Kaur got Rs.39,000/- as compensation from the owner of the offending vehicle, out of which Rs.8000/- were given to Sukhchain Singh, the husband's brother of the deceased. Despite the demand by the husband of the deceased, Ram Singh did not gave him any money to him as the truck was yet to get repaired which annoyed the deceased and she was pressing her husband to stake a claim for money from his father. It was also alleged that appellant Raj Kaur was living separate from the deceased. After suffering injury on her foot she was lying on cot and was unable to walk.
8. The accused-appellants examined as many as ten witnesses in their defence.
9. After appreciating the material on record and contentions raised by the parties, learned trial Court vide impugned judgment dated 01.12.2009 held guilty and convicted both the appellants for the offence punishable under Section 302 IPC and were awarded the sentence as SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -5- mentioned in the upper part of the judgment.
10. Aggrieved from the aforesaid judgment of conviction and order of sentence, the present appeal has been preferred by the accused- appellants.
11. We have heard Shri Kanwaljit Singh, Senior Advocate learned counsel for the appellants assisted by Ms.Gurdeep Kaur, Advocate, Shri P.P.S. Thethi, learned Additional Advocate General for the State of Punjab and have meticulously examined the record of the case.
12. Initiating the arguments, learned Senior Advocate, counsel for the appellant contended that the entire case of the prosecution is based on two dying declarations. The first dying declaration Ex.PF has been recorded by PW6 Shri Barinder Singh Ramana, Judicial Magistrate, Barnala and the second dying declaration Ex.PD has been recorded by PW4 ASI Gurdit Singh. He contended that there is no explanation as to what was the need of writing the second dying declaration by PW4 ASI Gurdit Singh within a span of half an hour. This renders the prosecution case doubtful.
13. He further contended that Dr.Parvesh Kumar, who had declared the injured fit to make statement has stated in the cross examination that he has not over heard the conversation between the patient and ASI Gurdit Singh as well as between Shri Barinder Singh Ramana, Judicial Magistrate First Class, Barnala and the deceased. He further deposed that he had been attending the other patients during that SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -6- period. It shows that the doctor has not remained present while the dying declarations of the deceased were being recorded. So he cannot state as to whether the deceased remained in fit state of mind or not during the course of recording her statement.
14. He further contended that the dying declaration made by the deceased is the result of tutoring by her relatives, particularly Harvinder Singh, the maternal uncle (Mussa) of the deceased who had come to Civil Hospital, Barnala before recording of her statement.
15. He further contended that both the appellants are living separate from the deceased which is evident from the testimonies of defence witnesses. Even separate ration cards were issued by the food and supply department. So there was no question of the accused- appellants having any grudge against the deceased to take such extreme step of setting her ablaze. He further contended that appellant Joginder Kaur was an old lady of more than 70 years of age at the time of the occurrence. It is not believable that such extremely old lady will be able to set ablaze a young healthy woman. He further contended that as per statement of DW9 Dr.Geetika Verma, appellant Raj Kaur alias Rajvinder Kaur had suffered a serious injury in an accident. The factum of the accident is not disputed as the same is even mentioned in the dying declaration. As per the statement of DW9 Dr.Geetika Verma, Medical Officer, Civil Hospital Sangrur appellant Raj Kaur had suffered a fracture of her great toe and her foot was under plaster. She was lying on the cot at that time, as accident had taken place just 12 days before this SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -7- occurrence and was not in a position to move. So it is not believable that she would have been able to caught hold the deceased. Thus, he contended that the version mentioned in the dying declaration by the deceased is wholly improbable and cannot be relied upon.
16. He further contended that an inquiry was also conducted by the Deputy Superintendent of Police and Raj Kaur was found innocent.
17. He further contended that both the dying declarations are contradictory. There are material contradictions in the dying declarations recorded by ASI Gurdit Singh and Shri Barinder Singh Ramana, Judicial Magistrate First Class. Such contrary dying declarations cannot be relied upon.
18. He further contended that it is also mentioned in the dying declaration itself that the deceased was taken to the hospital by her father- in-law Ram Singh and mother-in-law appellant Joginder Kaur. If Joginder Kaur would have set her ablaze, there was no question of her taking the deceased to the hospital. This fact also falsifies the allegations mentioned in the dying declaration.
19. He further contended that except dying declarations Ex.PD and Ex.PF, there is no incriminating evidence against the appellants.
20. He has further drawn our attention to the defence evidence. He contended that in fact the deceased was fed up with the bad habits of her husband who was a drug addict and was having very meagre SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -8- income. Ram Singh, the father-in-law of the deceased, has received a sum of Rs.39,000/- as compensation for the damage caused to his truck in the accident and out of that he has paid Rs.8000/- to Sukhchain Singh, the husband of appellant Raj Kaur. But no amount was paid to the husband of the deceased. Due to this reason she was annoyed with her in-laws and committed suicide. He contended that DW1 Balwinder Singh, Ex.Sarpanch of village Sehajra, DW4 Kiranjit Kaur, DW5 Tejinder Kaur, DW6 Bahadur Singh, DW7 Dalbara Singh Member Panchayat, the inhabitants of the village have consistently deposed that deceased Inderpreet Kaur had herself set her on fire and she admitted her mistake before them and even requested to save her. He contended that it was the oral dying declaration made by the deceased before the respectables of the village. He contended that such number of respectables of the village cannot falsely support the defence plea of the appellants and, there is no reason to disbelieve their testimonies. He further contended that from the statements of DW4 Kiranjit Kaur and DW5 Tejinder Kaur it comes out that at the time of occurrence appellant Joginder Kaur was not even present in the house and was making cow-dung cakes in front of their house and Raj Kaur was lying on her bed in her own house. Thus, he contended that in view of the aforesaid cogent, consistent and reliable defence evidence, the conviction of the appellants is not justified solely on the basis of dying declaration of the deceased without any corroboration.
21. He further contended that if the intention of the appellants SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -9- would have been to murder Inderpreet Kaur, there was no reason for appellant Joginder Kaur to carry her to the hospital. Thus, he pleaded that the conviction of the appellants has been wrongly recorded by the learned trial Court.
22. On the other hand learned State counsel contended that the defence plea raised by the appellants is an afterthought. The defence witnesses relate to their village and had come forward to save their co- villagers. He contended that there is no material on file to show that the deceased was tutored by her family members. Even this fact is not established that any member of her parental family was present at the time of recording her dying declaration. He contended that there was absolutely no reason for the false implication of the appellants by the deceased. She remained alive for about seven days after the occurrence but she never retracted from the dying declaration made by her. There is no material contradiction in both the dying declarations qua the role of the accused. As per the opinion of PW1 Dr.Parvesh, the deceased was fully conscious and fit to make the statement. The dying declaration was voluntary made by the deceased before PW4 ASI Gurdit Singh and PW6 Shri Barinder Singh Ramana, Judicial Magistrate First Class, in fit state of mind. He contended that such truthful dying declaration can be acted upon to base conviction even without any corroboration. He contended that in fact the family members of her in-laws were of the view that the ill luck has come to the family in the shape of the accident of their truck as the deceased was not lucky and that is why she was asked to leave the SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -10- house. He contended that the truthfulness of the dying declaration is apparent from the fact that the deceased had not involved the other members of her in-laws family. Mere this fact that appellant Joginder Kaur is an old lady and Raj Kaur has suffered a minor injury is no ground to render the dying declaration unreliable. He further contended that entire family was residing in the same house having one gate, though in separate portions. Thus, he contended that the dying declarations of deceased Ex.PD and Ex.PF are wholly reliable and sufficient to record the conviction of the appellants. Thus, there is no illegality in the conviction of the appellants recorded by the learned trial Court.
23. We have given our thoughtful consideration to the aforesaid contentions.
24. This fact is not disputed that the entire case of the prosecution is based on dying declarations made by deceased Inderpreet Kaur. The first dying declaration Ex.PF has been recorded by PW6 Shri Barinder Singh Ramana, Judicial Magistrate First Class, Barnala and second dying declaration within a span of half an hour has been recorded by PW4 ASI Gurdit Singh which is Ex.PD. In the defence evidence the accused-appellants have also projected the oral dying declaration made by the deceased before the defence witnesses.
25. The legal position is well settled that if the dying declaration is true, reliable and has been recorded in accordance with established practice and principles, said sole dying declaration can form the basis for conviction. The Hon'ble Apex Court in case Bhagwan SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -11- Tukaram Dange Vs. State of Maharashtra 2014 (2) RCR (Crl.) 176 while dealing with the evidentiary value of the dying declaration has laid down as under :-
"Dying declaration is undoubtedly admissible under Section 32 of the Indian Evidence Act, but due care has to be given by the persons who record the statement. Dying declaration is an exception to the hearsay rule when it is made by the declarant at the time when it is believed that the declarant's death was near or certain. Dying declaration is based on the maxim, "Nemo moriturus praesumitur mentire" i.e. a man will not meet his maker with a lie in his mouth. Dying declaration is a statement made by a dying person as to the injuries culminated in his death or the circumstances under which the injuries were inflicted. Hearsay evidence is not accepted by the law of evidence because the person giving the evidence is not narrating his own experience or story, but rather he is presenting whatever he could gather from the statement of another person. That other person may not be available for cross-examination and, therefore, hearsay evidence is not accepted. Dying declaration is an exception to hearsay because, in many cases, it may be sole evidence and hence it becomes necessary to accept the same to meet the ends of justice.
The Court has to carefully scrutinize the evidence while evaluating a dying declaration since it is not a statement made on oath and is not tested on the touchstone of cross-examination. In Harbans Singh & another v. State of Punjab AIR 1962 SC 439 this Court held that it is neither a rule of law nor of prudence that dying declaration requires to be corroborated by other evidence before a conviction can be based thereon. Reference may also be made to the decision of this Court in State of Uttar Pradesh Vs. Ram Sagar Yadav and others (1985) 1 SCC 552. This Court in State of Uttar Pradesh Vs. Suresh alias Chhavan and others (1981) 3 SCC 635 SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -12- held that minor incoherence in the statement with regard to the facts and circumstances would not be sufficient ground for not relying upon statement, which was otherwise found to be genuine. Hence, as a rule of prudence, there is no requirement as to corroboration of dying declaration before it is acted upon."
26. Thus, as per the proposition of law laid down by the Hon'ble Apex Court in the aforesaid authority, there is no requirement for the corroboration of the dying declaration before it is acted upon.
27. In the instant case also the dying declaration made by deceased Inderpreet Kaur to PW4 ASI Gurdit Singh and PW6 Shri Barinder Singh Ramana, Judicial Magistrate First Class, Barnala, are established to be true, voluntary, reliable and made by the deceased in fit state of mind.
28. From the statement of PW4 ASI Gurdit Singh it comes out that on receiving the information that Inderpreet Kaur has been admitted in hospital Barnala due to burn injuries and was in a critical condition he approached PW6 Shri Barinder Singh Ramana, Judicial Magistrate and submitted the application Ex.PJ for recording her statement. PW6 Shri Barinder Singh Ramana, Judicial Magistrate also deposed that on 1st March, 2008, he was posted as Judicial Magistrate First Class, Barnala. On that day ASI Gurdit Singh, Police Station Mehal Kalan submitted a request Ex.PJ for recording statement of Inderpreet Kaur, wife of Jinder Pal resident of Shehjara. He visited Civil Hospital, Barnala and submitted a request Ex.PE to the Medical Officer, Civil Hospital Barnala seeking his opinion about the fitness of Inderpreet Kaur to make the statement. SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -13- Vide endorsement Ex.PE/1 she was declared fit to make the statement by the doctor. This version is also corroborated from the statement of PW1 Dr.Parvesh Kumar, who deposed that on 1st March, 2008 at 11:30 a.m. Inderpreet Kaur was medico legally examined by him and he recorded the following injuries on her body:
"Superficial to deep burns involving whole of her body sparing only soles of both her feet. Blisters containing serous fluid were present at places. Charring of skin was present at places. Skin peeled off at places. The skin underlying the blisters was inflamed red. The skin surrounding the blisters was red at places. The burns were approximately hundred percent. Singing of hair was present at places."
29. He further deposed that he prepared Medico Legal Report the carbon copy thereof is Ex.PA and Ex.PA/1 is the pictorial diagram depicting the seat of injuries. He further deposed that on 1st March, 2008, Shri B.S. Ramana, Judicial Magistrate First Class, submitted a request Ex.PE seeking his opinion with regard to fitness of Inderpreet Kaur to make the statement. The patient was declared fit to make statement on 1.3.2008 at 12:45 p.m. He proved his endorsement to this effect Ex.PE/1. He further deposed that Ex.PF statement of Inderpreet Kaur was recorded in his presence and endorsement Ex.PF/1 is in his handwriting and bears his signature. He further deposed that the patient remained fit during the course of her statement. He has also deposed that ASI Gurdit has moved written request Ex.PC for seeking his opinion regarding fitness of Inderpreet Kaur to make statement. Vide SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -14- endorsement Ex.PC/1 the patient was declared fit to make statement at 01:05 p.m. on 1.3.2008. He further deposed that statement Ex.PD of Inderpreet Kaur was recorded by ASI Gurdit Singh in his presence and patient remained fit during the recording of her statement. He proved his endorsement Ex.PD/1 to this effect.
30. Thus, from the aforesaid evidence it comes out that before recording the statement of deceased Inderpreet Kaur, PW4 ASI Gurdit Singh as well as PW6 Shri Barinder Singh Ramana, Judicial Magistrate has sought the opinion of PW1 Dr. Parvesh Kumar and he had declared the deceased fit to make the statement. He also certified that she remained fit during recording of her statement vide endorsement Ex.PD/1 and Ex.PF/1.
31. The aforesaid evidence shows that deceased Inderpreet Kaur was fully conscious and in fit statement of mind at the time of making the dying declarations recorded by PW4 ASI Gurdit Singh and PW6 Shri Barinder Singh Ramana, Judicial Magistrate.
32. A Division Bench of this Court in case Surinder @ Sundri son of Sohan Lal Vs. State of Haryana 2014 (3) RCR (Crl.) 110 has laid down that the expression "fit to make statement" and "fit during the statement" would include an opinion that the patient was fit in all respects and in a fit state of mind to make a statement. So, there is no escape from the conclusion that the deceased Inderpreet Kaur was fit in all respect while make the dying declarations.
33. There is also sufficient evidence on record to establish SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -15- that the dying declaration was voluntary made by the deceased. PW6 Shri B.S. Ramana, Judicial Magistrate deposed that he administered oath to Inderpreet Kaur and recorded her statement Ex.PF. The contents of the statement were read over to Inderpreet Kaur who put her thumb impression in token of its correctness. The statement also bears his initial. He further deposed that he recorded the certificate Ex.PF/2 on the statement. The statement was voluntary got recorded by Inderpreet Kaur. In the certificate Ex.PF/2 also the learned Magistrate has categorically mentioned that the statement, so recorded, is free and spontaneous by the declarant without any promoting suggestion or aid from any person.
34. There is no evidence on record to establish that the deceased was tutored by the members of her parental family or her relatives. Even this fact is not proved as to whether her relatives were present in the hospital or not at the time of recording her dying declaration. The occurrence has taken place at about 10:00 a.m. on 01.03.2008. The copy of the medico-legal report Ex.PA shows that she was brought to the Civil Hospital at about 11:15 a.m. by Ram Singh her father-in-law. The doctor has sent the information to the police vide ruqqa Ex.PB. The Judicial Magistrate reached the hospital to record her dying declaration. She was declared fit to make statement at 12:45 p.m. So, the dying declaration of the deceased has been recorded promptly without any delay and loss of time which rules out any opportunity for her relatives to tutor her to give the coloured version.
35. For the first time in the defence evidence, particularly in SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -16- the statements of DW1 Balwinder Singh and DW7 Dalbara Singh, it has been alleged that the husband of sister of her mother also accompanied to the hospital and he along with ASI Gurdit Singh remained with deceased Inderpreet Kaur for 3-4 minutes in the room of the hospital when other persons were turned out. But this plea also seems to be an afterthought and has been projected for the first time at the time of defence evidence. ASI Gurdit Singh appeared as PW4 and has been cross-examined at length by the learned defence counsel. In the entire cross examination of PW4 ASI Gurdit Singh he has not questioned at all as to whether Harvinder Singh, the maternal uncle of the deceased, met him in the hospital or not. DW1 Balvinder Singh has mentioned that said Harvinder Singh along with police officers left the hospital to call the Magistrate. After some time the police officer returned but Harvinder Singh did not come back to Civil Hospital, Barnala. This version is highly improbable, if Harvinder Singh relative of the deceased would had come present in the hospital and had accompanied the police official to call the Magistrate for recording her dying declaration/statement, he must have returned back to the hospital. It is not believable that he will leave the deceased lying unattended in the hospital at the mercy of her in-laws. So the story introduced in the defence evidence about the presence of Harvinder Singh, the maternal uncle of the deceased, is clearly an afterthought and is not reliable. Thus, there is no escape from the conclusion that dying declarations Ex.PD and Ex.PF made by the deceased are voluntary and free from any tutoring.
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36. The dying declarations made by the deceased are proved to be true and reliable. There is no contradiction in the dying declarations Ex.PD and Ex.PF qua the manner of occurrence and the role of the accused. The variation of other insignificant matters carry no importance. The dying declaration/statement Ex.PD recorded by PW4 ASI Gurdit Singh reads as under:-
"Statement of Inderpreet Kaur wife of Jinder Pal Singh, caste Jat, resident of Sehajra, aged about 23 years.
Stated that I am resident of aforesaid address. My marriage was solemnized about six years ago with Jitender Pal Singh son of Ram Singh, Jat, resident of Sehajra. I have a daughter aged about 2- ½ years. About 15 days ago, our vehicle had met with an accident. The family members of my in-laws had been asking me to leave and I had been saying as to where I should go. Today at about 10:00 a.m., my sister- in-law (Jethani) Raj Kaur wife of Sukha Singh caught hold of me and my mother-in-law Joginder Kaur wife of Ram Singh poured kerosene oil upon me and set me on fire with a matchbox. I raised shrieks and alarm and thereafter, my father-in-law Ram Singh and mother-in-law Joginder Kaur hurriedly brought me to Civil Hospital, Barnala and got me admitted there. I have heard the statement and is true.
Attested RTI
ASI Gurdit Singh Inderpreet Kaur
P.S. Mehal Kalan
1.3.2008."
37. The dying declaration Ex.PF recorded by PW6 Shri B.S. Ranama, Judicial Magistrate First Class, Barnala reads as under:-SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -18-
"Statement of Indepreet Kaur wife of Jinder Pal Singh son of Ram Singh, aged 23 years, resident of Sehajra, District Barnala.
On S.A. Question: When the incident took place?
Answer : The incident took place about one hour ago. The incident took place at about 10.
Question: What happened?
Answer : About 15 days ago, our vehicle met with an accident. Thereafter, my husband Jitender Pal Singh had been asking me to leave the house and he has been saying so at the instance of his mother Joginder Kaur. I had been telling him as to where I should go. We had been talking in the same manner. My husband is addicted to liquor.
Today, at about 10:00 a.m., my sister-in-law (Jethani) Raj Kumar wife of Sukha Singh caught hold of me and my mother-in-law Joginder Kaur poured kerosene oil on me and set me on fire with a matchbox. I caught fire and on that score, I raised shrieks and later on, my father-in-law Ram Singh and my mother-in-law brought me to Civil Hospital, Barnala.
Question: What is the motive?
Answer : My husband is an addict and for that reason, I was being asked to go, otherwise I will be killed.
RO & AC RTI Inderpreet Kaur -Sd-
JMIC(D) 01.03.2008."
38. In both the dying declarations Ex.PD and Ex.PF, it has been categorically mentioned that appellant Raj Kaur, the sister-in-law of the deceased, caught hold of her and appellant Joginder Kaur, her mother- SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -19- in-law poured kerosene oil and set her on fire with match stick. Thus, both the dying declarations are absolutely consistent qua the role played by the appellants in the commission of this occurrence as well as the manner of the occurrence.
39. No doubt from the statement of DW9 Dr. Geetika Verma it comes out that on 16.02.2008, appellant Rajvinder Kaur (Raj Kaur) was admitted in Community Health Centre, Dhanaula as a case of roadside accident. She further deposed that she has suffered the fracture of proximal phalanx of great toe. She was also having lacerated wound on the dorsum of left foot. She had also lacerated wound on the front of right lower leg. Thus, appellant Raj Kaur has suffered the fracture of proximal phalanx of her great toe, which is not the vital part of the body and which can restrict her movement that too after about 12 days of suffering the injuries. Similarly it has been argued that appellant Joginder Kaur was an old lady and was not able to put a young lady on ablaze. From the statement of DW4 Smt. Kiranjit Kaur and DW5 Smt.Tejinder Kaur, it comes out that Joginder Kaur was making cow-dung cakes. If she can carry out such functions so it cannot be believed that she was incapacitated due to her old age and was not in a position to commit the offence in the manner alleged by the prosecution.
40. There was absolutely no reason for the false implication of the appellants by deceased Inderpreet Kaur. In the defence plea, it has been alleged that the deceased was fed up with the bad habits of her husband and their weak financial position. It is also alleged that the SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -20- husband of the deceased was not paid the money out of the amount of the compensation received by her father-in-law and she was annoyed due to this reason. If that would have been so she could have grievance against her husband and her father-in-law and would have involved them for the commission of the offence but she has not involved her husband and father-in-law for setting her on ablaze. This fact adds to the truthfulness of the dying declaration. To support this view, reference can be made to the cases Krishan Vs. State of Haryana 2013(2) RCR (Criminal) 88 and Annapurna Vs. State of UP 2013 (2) RCR (Criminal) 881.
41. In the statement of PW7 Dr. Uma Bindal, Sr. Resident, Department of General Surgery, Govt. Medical College and Hospital, Chandigarh, it has come and as per the record brought by her, Hunney, the brother of the patient, has disclosed the history of burn on 01.03.2008 at home due to stove burst. This endorsement bears the signature of Casualty Medical Officer. She further deposed that the history given by the brother of the deceased has been recorded on the reverse of the sheet whereupon the history has been recorded by her that in-laws put kerosene. The appellants cannot take any benefit of these facts in the cross-examination of PW7 Dr.Uma Bindal as it is even not the case of the appellants that deceased Inderpreet Kaur has suffered the burn injuries due to bursting of the stove rather they are alleging that she committed suicide by setting herself on ablaze. Moreover, the record mentioned by PW7 Dr.Uma Bindal has not been brought on record. Hunney, the brother of the deceased, who has allegedly gave this history of bursting of stove SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -21- has also not been examined.
42. In case Rakesh and another Vs. State of Haryana 2013 (3) RCR (criminal) 568 while recording the history of the patient the doctor had noted that it was accidental fire while cooking food which caused the burn injuries. Hon'ble Apex Court held that in view of the categorical statement made by the deceased and her dying declaration to the contrary, reference made by the doctor while recording the history of the patient would not affect the prosecution case.
43. The occurrence has taken place on 01.03.2008. She died on 07.03.2008 i.e. after six days of the occurrence. Meaning thereby she remained alive for six days after making the dying declaration. If her statement would have been untrue, she must have had the second thought but she did not retract from her statement at any point of time.
44. Learned counsel for the appellants has pleaded that an inquiry was conducted by the Deputy Superintendent of Police and appellant Raj Kaur was declared innocent but the said inquiry report has not been produced in evidence in accordance with law, even the concerned Deputy Superintendent of Police who has conducted the inquiry has not been produced in the defence evidence. So, there is no legal evidence on record to establish that Raj Kaur was found innocent during the investigation when particularly PW4 ASI Gurdit Singh, Investigating Officer of the case and PW3 Nachhattar Singh, the then SHO Police Station Mehal Kalan, had pleaded failure of knowledge of Raj Kaur having been declared as innocent by the DSP. SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -22-
45. In her statement DW5 Tejinder Kaur has stated that Raj Kaur and Inderpreet Kaur are residing in the separate portions of the same house. There was an intervening wall between their portions. She also stated that Joginder Kaur and Ram Singh were residing with the deceased and other members were residing separately. DW4 Kiranjit Kaur has also deposed that Joginder Kaur and Ram Singh were residing with the deceased and other family members were residing separate. She further deposed that there was a common gate but an intervening wall was constructed between the houses of the deceased and Raj Kaur.
Meaning thereby, appellants Joginder Kaur was residing with the deceased and Raj Kaur appellant was residing in separate portion of that very house having a common gate. This fact is also supported from the site plan Ex.PM. So, it cannot be said that the appellants had no concern with the deceased and were living separate.
46. Mere this fact that Joginder Kaur also accompanied the deceased to the hospital along with Ram Singh her father-in-law is also not ground to render the dying declaration doubtful. It is clearly mentioned in the dying declaration that after suffering the burn injuries the deceased raised shrieks and raised alarm. Obviously on hearing the noise the inhabitants of the locality might have been attracted. Thus, in order to show her innocence and may be as a result of remorse, she might have accompanied the deceased to the hospital but that will not efface the crime committed by her.
47. The defence plea raised by the appellants and the SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -23- testimonies of the defence witnesses that the deceased herself committed suicide as she was unhappy with the conduct of her husband and her husband was not paid the share out of the compensation amount received by her father-in-law from the owner of the offending vehicle who caused damage to their truck carries no substance. All the defence witnesses are the inhabitants of the village of the accused. It is a fact of common knowledge that in the villages the inhabitants have closely knit relationship and have a tendency to come forward to protect their co- villagers in case of need. Deceased Inderpreet Kaur was the daughter-in- law of the village having her roots somewhere else.
48. The version of the defence witnesses also looks to be artificial as it is not believable that one by one all the witnesses would have asked the deceased about the manner of her suffering the burn injuries. It shows that the defence witnesses were determined to support the defence plea put forward by the appellants, consequently their testimonies are unworthy of credence.
49. Mere this fact that ASI Gurdit has also recorded the statement of the deceased Ex.PD immediately after recording the statement by the Magistrate is not going to create any dent in the prosecution case. In his wisdom ASI Gurdit Singh thought it fit to himself record the statement of the deceased as the statement recorded by the Magistrate was taken away by him. Moreover, as already mentioned both the statements are consistent on the mode of occurrence as well as role played by the accused in the commission of the offence. SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -24-
50. We also do not find any substance in the plea of learned counsel for the appellants that accused had no intention to commit murder of Inderpreet Kaur merely on the ground that Joginder Kaur had accompanied her to the hospital.
51. Thus, keeping in view our aforesaid discussion, the dying declarations Ex.PD and Ex.PF made by the deceased Inderpreet Kaur are true and correct and have been made by the deceased voluntary, free from any tutoring, in fit state of mind and both the dying declarations made by her are consistent qua the role played by the appellants and the manner of the commission of the offence. These dying declarations are not attended by any suspicious circumstance. The first dying declaration Ex.PF has been recorded by the Judicial Magistrate First Class, Barnala and the second dying declaration has been recorded by the Investigating Officer of the case. Consequently, the aforesaid dying declarations are cogent, consistent and reliable. Such dying declarations can be made the basis for conviction even without corroboration. Moreover, in the instant case the dying declarations stand corroborated from the recovery of the plastic can of kerosene and the matchbox from the scene of crime, medical evidence showing burn injuries and report of Forensic Science Laboratory Ex.PT. This fact is not disputed even by the appellants that the deceased Inderpreet Kaur has died as a result of burn injuries. Thus, we do not find any legal infirmity in the conviction of the appellants recorded by the learned trial Court and the sentence awarded to them.
52. Thus the conviction of the appellants and sentence SUNIL YADAV 2014.11.27 14:25 I attest to the accuracy and authenticity of this document Chandigarh CRA No.D-26-DB-2010 -25- awarded to them by the learned trial Court are hereby affirmed. Resultantly, the present appeal being devoid of merits is hereby dismissed. The bail bonds furnished by the appellants shall stand cancelled. The appellants be taken into custody to undergo the remaining part of their sentence.
( M. JEYAPAUL )
JUDGE
18.11.2014 ( DARSHAN SINGH )
sunil yadav JUDGE
SUNIL YADAV
2014.11.27 14:25
I attest to the accuracy and
authenticity of this document
Chandigarh