Punjab-Haryana High Court
Balkish Begum (Mrs.) vs State Of Punjab on 9 February, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.1461-SB of 2001
Date of decision: 9th February, 2011
Balkish Begum (Mrs.)
... Appellant
Versus
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Ms. Vandana Malhotra, Advocate for the appellant.
Mr. B.S. Sra, Additional Advocate General, Punjab
for the State.
KANWALJIT SINGH AHLUWALIA, J.
Present appeal has been filed by Balkish Begum alias Babbu wife of Ishwar alias Pappy. She was named as an accused in case FIR No.269 dated 07.07.2000 registered at Police Station Kotwali Sangrur under Section 306 IPC. It was alleged by the prosecution that on 6th July, 2000 at about 11.00 a.m., one Vicky had committed suicide and the appellant had abetted its commission by instigating said Vicky to commit suicide and thus, the appellant committed an offence punishable under Section 306 IPC. The appellant was tried by the Court of Additional Sessions Judge, Sangrur, which vide its judgment dated 8th October, 2001, held the appellant guilty of an offence punishable under Section 306 IPC and vide a separate order of even dated sentenced her to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.1,000/-, in default of payment of fine to further undergo rigorous imprisonment for six months.
Criminal Appeal No.1461-SB of 2001 2
To notice the broad contours of prosecution case, it will be necessary to give the gist of prosecution evidence.
Dr. Balwinder Singh PW-1, who was posted as a Medical Officer on 6th July, 2000 in Civil Hospital, Sangrur, at about 11.30 p.m had sent a ruqa Ex.PA to SHO Police Station Sangrur, wherein he stated that Vicky son of Babu Ram was admitted in the hospital with a history of approximately 60 per cent burns and smell of kerosene oil was present. It was further stated that Vicky was brought by his father. On the same day, ASI Ajit Singh PW-9 submitted an application and sought opinion of the doctor regarding fitness of Vicky. Vide Ex.PB, the doctor opined that Vicky was not fit to make statement. On the night of 6th July, 2000, Vicky was taken from Civil Hospital, Sangrur to Rajindra Medical College and Hospital, Patiala. On the next day, i.e. 7th July, 2000, ASI Ajit Singh PW-9 reached Rajindra Medical Collage and Hospital, Patiala and moved an application Ex.PW9/A and sought opinion of the doctor regarding fitness of injured Vicky. Dr.Rupinder on 7th July, 2000 at about 2.35 p.m. vide Ex.PW9/B stated that patient Vicky was fit for statement. Thereupon, ASI Ajit Singh PW-9 recorded statement Ex.PW-9/C of injured Vicky, which was attested by his father Babu Ram. The statement so recorded, after translation, has been reproduced in the impugned judgment and the same reads as under:
"That he is resident of the address given above i.e. Sunamigate, Sangrur and labourer. For the last 5-6 months, he developed love affairs with Babbu wife of Ishwar alias Pappy son of Mangat Ram, who resides in the Chobara of the house of Ganga Sahai son of Tota Ram, Dhurigate, Sangrur, as tenant. He often used to meet Babbu in the absence of said Pappy and used to spend his entire earnings to meet her demands. She used to say that she would marry him and does not like Pappy i.e. her husband. During the last 15-20 days, he was short of money and as such could not meet her demand and due to this reason, she started thinking bad of him. Yesterday i.e. on 6.7.2000 at about 11.00 a.m., he went to the Criminal Appeal No.1461-SB of 2001 3 rented house of Babbu to meet her and she met him in her room and said to him that in case he cannot live without her then both of them may die after putting kerosene oil on their bodies and setting it on fire. He agreed with it and asked her to bring kerosene oil and match box from the kitchen. Both of them sprinkled kerosene oil on their clothes, but she asked him to set himself on fire first and stated that she would set herself on fire afterwards. On this, he set his clothes on fire with match stick, but she i.e. accused ran inside the room and locked the door. His clothes caught full fire and he jumped into the courtyard from the roof top and then fell down in the street and became unconscious. Now he has learnt that his father Babu Ram got him admitted in Civil Hospital, Sangrur from where the Doctor referred him here i.e. Rajendra Hospital, Patiala. He set himself on fire after sprinkling kerosene oil on his clothes due to non-fulfillment of promise by Babbu and at her asking. He was compelled to die by Babbu by setting himself on fire after sprinkling kerosene oil on the body."
Vicky died on 21st July, 2000 and the above statement is now being relied upon as a dying declaration of the deceased Vicky.
Autopsy on the dead body of Vicky was conducted on 21st July, 2000 at about 11.00 a.m. by Dr.D.S. Bhullar PW-7. According to the opinion of this witness, the cause of death was shock due to burns, which was ante- mortem in nature and sufficient to cause death in the ordinary course of nature.
The dying declaration Ex.PW-9/C was attested by Babu Ram, father of the deceased Vicky. He appeared in the witness box as PW-8 and stated that on 6th July, 2000 at about 11.00 a.m., he was present at rickshaw stand when one Bansi Lal rickshaw puller told him that his son Vicky was lying in a burnt condition in front of the house of a Dhobi. Babu Ram went there and found his son in a burnt condition and he was unconscious. He brought his son in the same condition to Civil Hospital, Criminal Appeal No.1461-SB of 2001 4 Sangrur and got him admitted there. He further stated that his son used to visit the accused and he had been restraining him. At Rajindra Hospital, Patiala, his son had told him that accused Balkish Begum had asked him that if he could not live without her, then both of them should commit suicide. Then Balkish Begum brought a tin of kerosene oil and both sprinkled kerosene oil on their bodies. The deceased further told his father at the hospital that at the instance of the accused, he had set himself on fire, but accused went inside the room and locked it from inside. This witness stated that his statement was recorded by the police. In cross- examination, he stated that before 6th July, 2000, he was not aware as to whether his son was having any relation with the accused. This witness nowhere stated in his testimony that he had attested the dying declaration Ex.PW-9/C. Besides Babu Ram PW-8, prosecution examined Babli PW-4, who stated that about eight months back, she used to reside in the house of one Dhobi i.e. Washerman, as a tenant on the ground floor. She knew Vicky, who was like her brother. He was residing as a tenant in a house at Sunami Gate. Daughter-in-law of owner of the house, whose name was Geeta, was also residing in the upper portion of the house, where this witness was residing. Vicky used to visit this witness but she was not aware if Vicky used to visit upper portion of the house. She further stated that accused present in the Court used to reside in the upper portion of the house, of which she was a tenant on the ground floor. This witness further stated that she was not aware if Vicky used to go to upper portion of the house in order to meet the accused. She was declared hostile by the prosecution and was cross-examined by the Additional Public Prosecutor. In cross-examination, she stated that the accused had a love affair with Vicky and the husband of accused used to go early in the morning and return late in the night. However, she denied rest of the statement made to Criminal Appeal No.1461-SB of 2001 5 the police. This witness was duly confronted with her statement Ex.PE recorded under Section 161 Cr.P.C. In cross-examination by the defence counsel, this witness took a summersault and stated that accused was not having any relations with the deceased Vicky.
ASI Surinder Kumar PW-2 in the month of July 2000 was posted as MHC at Police Station Kotwali Sangrur. He tendered his affidavit Ex.PC. Constable Krishan Pal PW-3 also tendered his affidavit Ex.PD. The affidavits were tendered by both these witnesses to prove link evidence.
HC Ram Singh PW-5 stated that he obtained post-mortem report from Rajindra Hospital, Patiala and handed over the same to ASI Ajit Singh PW-9. Jaspal Singh Sodhi Architect PW-6 had prepared the scaled site plan of the spot Ex.PF.
ASI Ajit Singh PW-9 stated that on 6th July, 2000 he had received ruqa Ex.PA from the doctor and in response thereto, he reached the Civil Hospital, Sangrur. The patient was declared unfit to make statement. On the next day, he went to Rajindra Hospital, Patiala where the doctor declared Vicky fit to make statement and he recorded statement of Vicky Ex.PW-9/C, which was attested by father of Vicky. Thereafter, he deposed regarding various other aspects of the investigation.
Prosecution tendered the report of Forensic Science Laboratory Ex.PX and closed its evidence.
Thereafter, a statement of the accused appellant was recorded under Section 313 Cr.P.C. She denied all the incriminating circumstances put to her and pleaded innocence.
No evidence was led in defence.
From the entire prosecution case noticed above, the evidence, which emerges against the accused, is in the form of a written dying declaration Ex.PW-9/C made by the deceased Vicky, which was recorded by ASI Ajit Singh PW-9. This dying declaration has been attested by Babu Criminal Appeal No.1461-SB of 2001 6 Ram PW-8, father of the deceased. Babu Ram in his deposition in Court has not stated that he had attested the dying declaration. He has stated that the deceased disclosed him orally that the accused had told him that if deceased Vicky cannot live without the accused then both of them should commit suicide. Thus, this Court has to determine (a) whether reliance can be placed upon the written dying declaration Ex.PW-9/C and (b) whether the oral dying declaration made by the deceased to his father Babu Ram PW-8 is reliable or not.
Before this Court could venture to determine these questions, it is to be noticed that in case the dying declaration is believed then the conduct of the accused shall make her liable as an abettor, as defined under Section 108 of Indian Penal Code. Section 108 of IPC reads as under:
"108. Abettor A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor."
The very fact that on the instigation of the accused, deceased had put himself on fire is sufficient to hold that the act of the appellant falls within the definition of 'abettor' given in Section 108 IPC.
Now to determine the validity of the dying declaration. Occurrence, in the present case, had taken place on 6th July, 2000 at about 11.00 a.m. As per ruqa Ex.PA sent to SHO Police Station Sangrur, the deceased reached at Civil Hospital, Sangrur at about 11.30 p.m. Dr. Balwinder Singh PW-1 had declared him unfit to make statement. On the same night, the deceased Vicky was shifted to Rajindra College and Hospital, Patiala, where vide Ex.PW-9/B Dr. Rupinder had declared him fit Criminal Appeal No.1461-SB of 2001 7 to make statement on 7th July, 2000 at about 2.35 p.m. The dying declaration Ex.PW-9/C does not bear any endorsement of the doctor. It is nowhere stated by the doctor that the dying declaration was recorded in her presence. Furthermore, Dr.Rupinder, who had given the opinion vide Ex.PW-9/B regarding fitness of Vicky to make a statement, was given up by the prosecution as unnecessary. It was incumbent upon the prosecution to examine Dr.Rupinder, as she could be cross-examined regarding fitness and medical stage of the deceased Vicky as to whether he could speak or not. Vicky remained admitted in Rajindra Hospital, Patiala from 7th July, 2000 to 21st July, 2000. His bed-head-ticket has not been proved on the record. The relevant material has been withheld from the Court, wherefrom it could be independently assessed as to whether Vicky could make a statement or not. The dying declaration Ex.PW-9/C was attested only by Babu Ram, father of the deceased, who while appearing as PW-8 in the Court, has not stated that the dying declaration was recorded in his presence. Thus, non-examination of Dr.Rupinder, who had declared the injured fit to make statement and withholding of the bed-head-ticket of the deceased, coupled with the fact that the attesting witness has not deposed regarding the dying declaration Ex.PW-9/C, therefore, same is to be ruled out of consideration.
Now, whether oral dying declaration to the father Babu Ram PW-8 is entitled to any credence? It is stated that in the present case, occurrence had taken place on 6th July, 2000 at about 11.00 a.m. Babu Ram PW-8 stated that on the same day at about 11.00 a.m. he learnt that his son was lying in a burnt condition and he was unconscious. He brought his son in a burnt condition to Civil Hospital, Sangrur in a rickshaw and got him admitted there. Ruqa Ex.PA sent by Dr.Balwinder Singh PW-1 stated that the injured reached the hospital at about 11.30 p.m. As to where the deceased remained for 12 hours, has not been explained by the witness. Criminal Appeal No.1461-SB of 2001 8 Furthermore, when Vicky was carried to the Civil Hospital, Sangrur, he was in an unconscious stage, therefore, he could not make a dying declaration. Babu Ram PW-8 stated that his son had made an oral dying declaration at Rajindra Hoapital, Patiala. No medical record has been proved to show as to whether the deceased was in a fit condition to make statement to his father or not. Babu Ram PW-8 stated that his son remained conscious till 20th July, 2000. According to this witness, from 7th July, 2000 to 20th July, 2000 his son was talking to him and his wife. If that is so, as to why the statement of the deceased was not got recorded from the Magistrate to ensure authenticity of the dying declaration? This question stares at the prosecution. Thus, taking totality of circumstances enumerated above, it is not safe to rely upon the dying declaration Ex.PW-9/C and the oral dying declaration made by the deceased to his father Babu Ram PW-8.
Once the dying declaration is taken out of consideration, there is no incriminating evidence available with the prosecution. Thus, as a matter of abundant caution, benefit of doubt is extended to the appellant.
Hence, present appeal is accepted. Conviction and sentence of the appellant is hereby set aside and she is acquitted of the charges.
[KANWALJIT SINGH AHLUWALIA] JUDGE February 9, 2011 rps