Punjab-Haryana High Court
Malkiat Singh And Another vs The State Of Punjab on 31 March, 2010
Author: Hemant Gupta
Bench: Hemant Gupta, Jaswant Singh
Crl. Appeal No.851-DB of 2004 & 1
Crl. Revision No.2505 of 2004
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: March 31, 2010
Crl. Appeal No.851-DB of 2004
Malkiat Singh and another ...Appellants
Versus
The State of Punjab ...Respondent
Present: Mr. Baldev Singh, Sr. Advocate, with
Mr. Deepinder Singh, Advocate,
for the appellants.
Mr. K.S.Sidhu, DAG, Punjab,
for the respondent-State.
Crl. Revision No.2505 of 2004
Surinder Kaur ...Petitioner
Versus
Malkiat Singh and another ...Respondents
Present: Ms. G.K.Mann, Advocate,
for the petitioner.
Mr. Baldev Singh, Sr. Advocate, with
Mr. Deepinder Singh, Advocate,
for the respondents.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE JASWANT SINGH
1. Whether Reporters of 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?
HEMANT GUPTA, J.
This order shall dispose of Criminal Appeal No.851-DB of 2004 filed by Malkiat Singh and Amarjit Singh @ Kamal against the Crl. Appeal No.851-DB of 2004 & 2 Crl. Revision No.2505 of 2004 judgment of conviction and order of sentence dated 27.09.2004 passed by the learned Sessions Judge, Ludhiana, convicting and sentencing them for life imprisonment for the offence punishable under Section 302 read with Section 34 IPC for causing death of Jasbir Singh son of Gurdev Singh resident of Village Maksoodran; and Criminal Revision No.2505 of 2004 filed by Surinder Kaur wife of deceased Jasbir Singh for enhancement of sentence to death.
The prosecution case was set in motion on the basis of dying declaration of deceased Jasbir Singh recorded by Shri H.J.S.Tiwana, Judicial Magistrate Ist Class, Ludhiana on 9.6.2000 at about 5.30 PM. On the basis of such dying declaration, a ruqa was sent to Police Station Payal, wherein FIR was lodged at 7.00 PM. The special report was received by the Magistrate at 12.45 AM on 10.06.2000. The dying declaration is to the following effect :
"Stated that I am resident of above address. I am coming from Ghudani Kalan, there is liquor vend on the Bridge. There Malkiat Singh son of Ujagar Singh resident of Maksoodran, Amarjit Singh alias Kamal son of Mewa Singh resident of Maksoodran have consumed liquor and have parked the scooter in a slanting condition in the middle of the road. They hurled abuses by the name of mother and sister upon me. In the meantime, people gathered there whose names, I do not know. People advise those persons and got them aside. I came to my home by speedily driving the scooter. Malkiat Singh and Amarjit Singh came to my house behind me and started abusing. They had a canny of oil. They poured oil upon me. In the meantime, Gian Singh @ Gosha son of Bachan Singh, Jora Singh son of Mangal Singh resident of Maksoodran reached the spot. At that time, the accused enlightened the Crl. Appeal No.851-DB of 2004 & 3 Crl. Revision No.2505 of 2004 match stick and set me on fire. Thereafter, I became unconscious. Thereafter, I do not know who brought me to the hospital. This occurrence took place a day before yesterday i.e. 7.6.2000. I have made my statement truly with my own free will and without pressure from any one. I have heard the statement, which is correct."
As per the dying declaration, the occurrence has taken place on 7.6.2000, when Malkiat Singh and Amarjit Singh parked their scooter in the middle of the road after consuming liquor. As per the statement recorded by the Magistrate, the deceased came home by driving the scooter with speed after abuses were hurled upon him by the appellants. The appellants chased him and had a cane of oil. The same was poured upon him. Gian Singh @ Gosha and Jora Singh residents of Maksoodran are said to have reached at the spot before the accused could enlighten the match stick and ignite fire.
As per the facts on record, Jasbir Singh was removed to Community Health Centre, Payal on 7.6.2000 at 9.30 PM. Dr. Prem Pal Gill, Medical Officer, Community Health Centre, Payal has sent a ruqa Ex.PO to the S.H.O., P.S.Payal in respect of patient Jasbir Singh having received burn injuries and that he has been referred to Civil Hospital, Ludhiana. Ex.PS is the indoor admission record of Jasbir Singh maintained by Dayanand Medical College and Hospital, Ludhiana. One Ram Asra is the attendant, who has undertaken to pay the amount and clear all the bills pertaining to the patient. Dr. Sachin Jindal, Junior Resident, in history recorded that on 7.6.2000 at about 8.30 PM, the patient himself sat on fire by putting oil on him (self-narrated by the patient himself). Dr. Shikha Aggarwal has also recorded on 8.6.2000 at about 2.30 AM that the patient has a history of sustaining burns by Crl. Appeal No.851-DB of 2004 & 4 Crl. Revision No.2505 of 2004 putting oil on himself (self-narrated by the patient). Vide Ex.PT/1 recorded at 5.30 PM on 8.6.2000, Dr. Anita has reported that the patient is unfit to make statement. It was on 9.6.2000 at 4.15 PM, vide Ex.PJ/1, Dr. Sachin Jindal has declared the patient fit to make statement and thereafter Shri H.J.S.Tiwana, Duty Magistrate, Ludhiana has recorded the statement at about 5.30 PM, on the basis of which, FIR has been lodged, as mentioned above. Deceased Jasbir Singh breathed his last on 13.6.2000.
Earlier vide report Ex.DW-5/A, the A.I.G. (Crime), in his report dated 30.08.2000 concluded that Jasbir Singh has committed suicide and it was requested that the S.S.P., Khanna should take steps for cancellation of the case. The Addl. Director General of Police, Punjab, also recommended for cancellation of case. But the cancellation report was not presented in the Court. The appellants Amarjit Singh @ Kamal and Malkiat Singh were arrested on 17.5.2002 and 28.5.2002 respectively. After completion of investigation, they were made to stand trial for the offence punishable under Section 302 read with Section 34 IPC.
In order to prove its case, the prosecution has examined PW-5 Dr. Prem Pal Gill, who attended Jasbir Singh in the first instance in the Community Health Centre, Payal. He has deposed that the patient was conscious at the time of examination. The ruqa Ex.PM does not disclose the history or sequence of occurrence. PW-7 is Dr. Shikha Aggarwal, Junior Resident, Dayanand Medical College and Hospital, Ludhiana. She has proved endorsement Ex.PJ/1, declaring the patient fit for making statement on 9.6.2000 at 4.15 PM recorded by Crl. Appeal No.851-DB of 2004 & 5 Crl. Revision No.2505 of 2004 Dr. Sachin Jindal. In her cross-examination, she has admitted that she was not present at the time, when the patient was brought to ICU. She has further stated that she cannot say anything about the history written by Dr. Sachin Jindal in the bed head ticket. Ex.DA is the writing on the bed head ticket of the history of the patient that he himself sat on fire by putting oil on him. She has subsequently stated that she enquired from the patient about the history of burn injuries and mentioned the same. PW-8 is Dr. Anita Jain, who has declared the patient unfit to make statement on 8.6.2000 at 5.30 PM. PW-14 is Dr. M.L.Gupta of Dayanand Medical College and Hospital, Ludhiana, who has proved endorsement Ex.PJ/1 dated 9.6.2000 in respect of fitness of Jasbir Singh to make statement. He has deposed that Dr. Sachin Jindal and Dr. Rajleesh Modi, who have sent the information to the Police and prepared the injury statement of Jasbir Singh have left the service of Dayanand Medical College and Hospital, Ludhiana and their whereabouts are not known to the hospital authorities. PW-6 is Dr. Gurcharan Singh, who has conducted the post mortem examination on the dead body of Jasbir Singh. He has reported that the cause of death is saepticaemic shock as a result of extensive burns, which was sufficient to cause death in the ordinary course of nature.
Apart from the aforesaid medical evidence, the prosecution has also examined PW-4 Shri H.J.S.Tiwana, the learned Judicial Magistrate, who has recorded the dying declaration Ex.PK after obtaining opinion of the doctor Ex.PJ/1 about the fitness of Jasbir Singh to make statement. Ex.PJ is the application moved by the Investigating Officer to the Doctor for his opinion in respect of fitness of the patient to make statement. He has deposed that he reached Crl. Appeal No.851-DB of 2004 & 6 Crl. Revision No.2505 of 2004 Dayanand Medical College and Hospital, Ludhiana accompanied by ASI Jaspal Singh and recorded the statement of Jasbir Singh. The statement was read over to him (Jasbir Singh) and he admitted the same to be correct. Since both hands of Jasbir Singh were burnt, therefore, thumb impression of his right foot was obtained on such statement. The endorsement to this effect is Ex.PK/1. The statement was sealed in hospital itself. The same was permitted to be inspected by ASI Jaspal Singh vide endorsement Ex.PL/1, on his application Ex.PL. He has further deposed that the statement was given by Jasbir Singh voluntarily without any coercion or undue influence and that Jasbir Singh remained conscious throughout, when he was recorded his statement. In his cross-examination, he has admitted that he has reached the hospital just few minutes earlier to 4.15 PM, when the opinion of the Doctor was obtained and the application Ex.PJ to seek opinion of the doctor regarding the fitness of Jasbir singh to make statement was moved by ASI Jaspal Singh in his presence. He has further stated that the Doctor has accompanied him to the bed, where Jasbir Singh was lying and he had identified him before he recorded his statement.
PW-11 is Jaspal Singh, the Investigating Officer, who has sought opinion of the Doctor in respect of fitness of Jasbir Singh to make statement on 8.6.2000 and on 9.6.2000. PW-1 is ASI Dilawar Singh, who has deposed that the investigation of this case was handed over to him and that he arrested Amarjit Singh on 17.5.2002 and Malkiat Singh on 28.5.2002. He has further deposed that on the basis of disclosure statement Ex.PC suffered by Malkiat Singh, one plastic can meant to store kerosene oil was recovered from a small store built Crl. Appeal No.851-DB of 2004 & 7 Crl. Revision No.2505 of 2004 under the stair-case in side his residential house. Such can is Ex.P-1. PW-3 Gian Singh is the person named by the deceased in the dying declaration. He has not supported the prosecution case. He was declared hostile and cross-examined by the Public Prosecutor.
After conclusion of evidence, including evidence of formal witnesses, the statements of the accused were recorded under Section 313 Cr.P.C. They were put all the incriminating circumstances appearing against them in the prosecution evidence. They denied the prosecution case in its entirety. However, in respect of question No.25; why the witnesses depose against you and what else he has to state, it was stated by Malkiat Singh that there are two party factions in Village Maksoodran. Most of the inhabitants of Maksoodran are against Sant Darshan singh Dhakkiwala, who has illegally occupied more than 100 acres patti land. Many criminal cases were registered against Sant Darshan Singh Dhakkiwala, when Shri Parkash Singh Badal was the Chief Minister of Punjab. He was confined in jail for two years for possessing illicit arms and ammunition. He falsely implicated 91 inhabitants in a false case of arson and criminal assault. It was further stated by him that Jasbir Singh has property dispute with his brother. He was under debt of the Bank and on account of this reason he poured kerosene oil on him and sat himself on fire. Villagers saw that Jasbir Singh had sat himself on fire and they had taken him to Community Health Centre, Payal for treatment. He has further stated that the case was reinvestigated by A.I.G. Shri Paramjit Singh Gill. He found him and his co-accused innocent. The cancellation report was prepared by Arvind Puri, S.H.O., P.S. Payal on 29.9.2000. He has further stated that after completion of the case, he and his co-accused were arrested and Crl. Appeal No.851-DB of 2004 & 8 Crl. Revision No.2505 of 2004 sent for trial and the cancellation report has not been sent to the Court. Similar is the statement of accused Amarjit Singh.
In their defence, the appellants have examined DW-1 Bhagwant Singh, who accompanied Jasbir Singh to the Community Health Centre, Payal on 7.6.2000 at 7.00 PM. His statement is based upon hear-say evidence, as he is deposing on the basis of a telephonic call received by Tara Singh, ex-Sarpanch of Village Maksoodran from Harminder Kaur wife of Nirmal Singh, brother of Jasbir Singh. He reached the place of occurrence after the fire was extinguished. In his cross-examination, the witness has admitted his involvement in numerous criminal cases. DW-2 is Balbir Singh, Sarpanch of Village Maksoodran. He has deposed on the basis of information allegedly given by Pritam Kaur, mother of Jasbir Singh. Such evidence is not primary evidence and inadmissible being hear-say evidence. DW-3 is SI Arvind Puri, who has prepared the cancellation report on 29.9.2000. However, he has admitted in his cross-examination that he has not recorded the statement of any witness, nor made any inquiry, nor applied his mind to the facts of this case and has prepared the cancellation report under the directions of the then A.D.G.P. (Crime), Punjab, Chandigarh. DW-4 is ASI Mohan Lal, who has produced the record of inquiry conducted by the then A.I.G. (Crime), Punjab, Chandigarh. DW-5 is Shri P.S.Gill, the then A.I.G. (Crime), Punjab, Chandigarh, who has conducted the inquiry. In his cross-examination, he has admitted that during the course of inquiry, he did not examine Shri H.J.S.Tiwana, Judicial Magistrate Ist Class, Ludhiana nor he has collected the dying declaration of Jasbir Singh, recorded by Shri H.J.S.Tiwana. Such dying declaration is also not on the inquiry file. Crl. Appeal No.851-DB of 2004 & 9 Crl. Revision No.2505 of 2004 He has deposed that the majority of the villagers were against Sant Darshan Singh Dhakkiwala, as according to them he was land grabber and that Shri Jagdish Singh Garcha was the Minister in Punjab Government in the year 2000. He denied the suggestion that Shri Jagdish Singh Garcha was deadly against Sant Darshan Singh Dhakkiwala. He also denied the suggestion that two sisters of Shri Jagdish Singh Garcha were married at Village Maksoodran and they both have been declared proclaimed offenders in a case under Section 307 IPC registered at P.S. Payal. He also denied the suggestion that the report Ex.DW-5/A was given under the influence of Shri Jagdish Singh Garcha, the then Minister and Shri Parkash Singh Badal, the then Chief Minister of Punjab. DW-6 D.K.Barna and DW-7 Jaswinder Singh are the witnesses, who deposed in respect of the income-tax record of the deceased Jasbir Singh.
The learned trial Court relied upon the dying declaration recorded by Shri H.J.S.Tiwana, Judicial Magistrate Ist Class, Ludhiana and found the appellants guilty of an offence punishable under Section 302 read with Section 34 IPC and sentenced them to life, as mentioned above.
Before this Court, learned counsel for the appellants has vehemently argued that the dying declaration Ex.PK recorded by the Judicial Magistrate Ist Class, Ludhiana is not the true version of the manner of occurrence. The said statement is not the first version and there are material discrepancies in the manner of recording of statement in the testimonies of PW-4 Shri H.J.S.Tiwana and PW-11 Jaspal Singh, the Investigating Officer. There is no evidence that the deceased was in Crl. Appeal No.851-DB of 2004 & 10 Crl. Revision No.2505 of 2004 a fit condition to make statement and remained so throughout the duration of making statement. The statement has not been recorded in the presence of the Doctor. Reliance is placed upon a judgment of Hon'ble Supreme Court in Raja Ram Vs. State of Rajasthan, 2005 Supreme Court Cases (Criminal) 1050. It is contended that from the statement of PW-7 Dr. Shikha Aggarwal and from the bed head ticket of admission of Jasbir Singh in Dayanand Medical College and Hospital, Ludhiana, it is apparent that the deceased has poured kerosene oil on himself and it is a case of suicide. Since the history of pouring kerosene is said to be narrated by the deceased himself, therefore, such description of the manner of occurrence is in the nature of dying declaration. In view of such dying declaration, wherein only a commission of suicide is made out, the prosecution of the appellants for causing death of Jasbir Singh is not tenable. It is further contended that there is no motive in commission of crime and it is impossible that the deceased would be burnt alive in the middle of village, where larger number of people are residing. It is further contended that, in fact, the appellants have been falsely implicated on account of rivalry in the village and on account of party factions between supporters and opponents of Sant Darshan Singh Dhakkiwala.
In respect of the argument that there are material discrepancies in the statements of PW-4 Shri H.J.S.Tiwana and PW-11 Jaspal Singh, the Investigating Officer, which throw doubt on the veracity of the dying declaration recorded, suffice it to state that the statement was recorded on 23.9.2003 & 22.11.2003 respectively i.e. more than 3 years of the occurrence. The discrepancy is in respect of the Investigating officer accompanying the Magistrate or the fact that Crl. Appeal No.851-DB of 2004 & 11 Crl. Revision No.2505 of 2004 the Investigating Officer has sought opinion of the doctor first and then called the Magistrate. Such discrepancy can occur due to passage of time, keeping in view the fact that both Magistrate and the Investigating Officer have to deal with large number of cases and there could be some omission in recapitulating the sequence of events of more than 3 years back. From the statement of PW-14 Dr. M.L.Gupta, it is apparent that whereabouts of Dr. Sachin Jindal, who has given the fitness declaration in respect of deceased on 9.6.2000 are not known. Therefore, he has not been examined. No doubt, there is no evidence that any doctor remained present for the entire duration of recording of dying declaration, but PW-4 Shri H.J.S.Tiwana, learned Judicial Magistrate Ist Class, Ludhiana, has categorically deposed that Jasbir Singh was conscious throughout the duration of recording of the dying declaration and that statement was read over to him and in token of acceptance, he has put his foot mark as his both hands were burnt. In fact, such is the order recorded on the foot of the dying declaration itself. There is no evidence that the deceased was tutored or was in contact with the persons interested in implicating the appellants. Jasbir Singh has foot marked the statement after the same was read over to him and after accepting the same to be correct.
Dr. Sachin Jindal, who has recorded the history of patient, has not been examined. Therefore, neither the person, who disclosed history nor the person, who has recorded such statement, could be examined in Court. Dr. Shikha Aggarwal, while appearing as PW-7 has contradicted herself in cross-examination. At one stage, she has stated that she was not present when the patient was admitted. He was brought to her in ICU burns later on. She cannot say anything Crl. Appeal No.851-DB of 2004 & 12 Crl. Revision No.2505 of 2004 personally about the history record. However, subsequently she has stated that she has recorded from the patient that he poured kerosene on himself. The contradictory statement given by Dr. Shikha Aggarwal renders her as unreliable witness. She is not consistent in her testimony. But such aspect does not affect the prosecution case in any manner, as sought to be argued by the learned counsel for the appellants. The fitness of the patient to make statement is proved by PW-14 Dr. M.L.Gupta. In the statement of PW-5 Dr. Prem Pal Gill, who attended Jasbir Singh in the first instance in the Community Health Centre, Payal, the history of suicide does not find mentioned. Since at the earliest opportunity, the history of pouring kerosene has not come on record, the history recorded in the bed head ticket of Dayanand Medical College and Hospital, Ludhiana, cannot be said to be conclusive so as to treat as a dying declaration. The statements are not marked by Jasbir Singh in any manner. In Raja Ram's case relied upon by the appellants, it was found by the Court that the deceased was made to believe that unless she puts the blame on the appellant and his parents, she would have to face the consequences like the prosecution proceedings. The said case is of no help to the appellants, as there is no evidence that there was any prompting by any person to the deceased Jasbir Singh, before he made his statement to the learned Judicial Magistrate Ist Class, Ludhiana, on 9.6.2000. The statement recorded by a Magistrate after the Doctor declared him fit to make statement, is trustworthy and reliable than the notings in the case history recorded by the Doctor. Consequently, we find that the statement Ex.PK is sufficient to form basis of conviction of the appellants for the offence Crl. Appeal No.851-DB of 2004 & 13 Crl. Revision No.2505 of 2004 of causing death of Jasbir Singh in the manner mentioned in the dying declaration.
The argument that there is no motive in the commission of crime and the deceased could not be burnt alive in the middle of the village, is devoid of any merit. The appellants, the deceased and the witnesses are residents of the same village. It is sought to be alleged that the deceased was in the camp of Sant Darshan singh Dhakkiwala, whereas the accused are the opponents. The appellants are Jats by caste, whereas the deceased was belonging to a Scheduled Caste. The deceased in his dying declaration has deposed that the appellants were under the influence of liquor and has blocked the road. The objection raised by the deceased infuriated the appellants, which led to hurling of abuses by the appellants. The appellants are said to have chased the deceased to his house. The manner in which the investigations were scuttled i.e. cancellation report prepared by Arvind Puri, S.H.O., P.S. Payal, without even recording the statements of the witnesses, but at the asking of A.D.G.P. (Crime), Punjab, Chandigarh shows the forces behind the appellants to avoid their prosecution. Shri Gill have given his report for cancellation of case even without examining the dying declaration recorded by the Magistrate. Therefore, such forces can be at play even in hospital to record that the deceased committed suicide. Thus, we find that the prosecution story in respect of manner of occurrence is believable though the Investigators have tried to scuttle the investigations.
The statements of DW-1 Bhagwant Singh and DW-2 Balbir Singh are of no help to the appellants, as both the witnesses are Crl. Appeal No.851-DB of 2004 & 14 Crl. Revision No.2505 of 2004 not the witnesses of the manner of occurrence. DW-1 Bhagwant Singh has arrived at the place of occurrence after the fire was extinguished, whereas DW-2 Balbir Singh has deposed on the basis of information given by Pritam Kaur. The primary evidence i.e. Pritam Kaur, mother of Jasbir Singh, has not been examined by the appellants in support of their defence version. Therefore, the statements of DW-1 and DW-2 are of no help to the appellants and does not in any way adversely affect the prosecution story.
Though it was the stand of the appellants in cross-
examination and in the evidence led in defence that the deceased committed suicide for the reason that he was under debt i.e. approximately Rs.1 lac. Ex.PZ is the Income Tax Clearance Certificate dated 4.5.1999. It disclosed Rs.33,880/- & Rs.20,400/- as the income of the deceased for his business of contractorship for the Assessment years 1997-98 and 1998-99. The story of suicide by Jasbir Singh is unbelievable and unsubstantiated. The dying declaration, recorded by the learned Judicial Magistrate Ist Class, Ludhiana is reliable, trustworthy and natural. Therefore, we find that the findings recorded by the learned trial Court are based upon correct appreciation of evidence.
We do not find that the findings recorded by the learned trial Court are in any way incorrect and are not permissible on the basis of evidence on record. It is not a case where punishment of life imprisonment deserves to be enhanced to death. There is no grave circumstance to award such punishment nor it is rarest of rare case warranting such punishment.
Crl. Appeal No.851-DB of 2004 & 15Crl. Revision No.2505 of 2004
Consequently, we do not find any merit in the appeal and revision. The same are dismissed.
(HEMANT GUPTA)
JUDGE
March 31, 2010 (JASWANT SINGH)
Vimal JUDGE