Punjab-Haryana High Court
Rajinder Kumar And Others vs State Of Punjab on 13 May, 2010
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal 507-SB of 1998
Date of Decision : May 13, 2010
Rajinder Kumar and others
....Appellants
Versus
State of Punjab
.....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Gurcharan Singh, Advocate
Mr. P.S.Grewal, Assistant Advocate General, Punjab
T.P.S. MANN, J.
The present appeal has been filed by the appellants against the judgment and order passed by Additional Sessions Judge, Ludhiana on 30.4.1998 whereby they were convicted under Section 304-B IPC and sentenced to undergo rigorous imprisonment for ten years each. They were also convicted under Section 498-A IPC and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.3,000/- each and in default of payment of fine, to undergo further imprisonment for three months. Both the sentences were ordered to run concurrently.
According to the prosecution, on 12.2.1995, on receipt Crl. Appeal 507-SB of 1998 -2- of ruqa from Civil Hospital, Samrala, SI Ravel Singh went there and after obtaining opinion from the doctor regarding the fitness of Smt. Neelam, since, deceased, recorded her statement Ex.PC to the effect that she was married to Rajinder Kumar appellant four years back and all the appellants were not satisfied with the dowry brought by her. On that day, when she was present in the house, appellant Rajinder Kumar (husband) caught hold of her, appellant Champa Rani (mother-in-law) sprinkled kerosene on her, appellant Sudarshana Devi (sister-in-law) brought the match box whereas appellant Ram Dhan (father-in-law) lighted the match stick and put her on fire. She was set on fire on account of bringing inadequate dowry. The statement was read over to her and after admitting it to be correct, she put her thumb impression on it. Later on, she died. After making endorsement Ex.PC/1 on the said statement, SI Ravel Singh sent the same to the Police Station for registration of the FIR, on the basis of which, FIR No. 20 was registered against the appellants at Police Station Samrala, for offences under Sections 498-A, 304-B and 302/34 IPC on 12.2.1995.
During the course of investigation, SI Ravel Singh went to the spot and interrogated several persons there. From the spot, a kerosene can, a match box and a half burnt shawl were taken into possession vide recovery memo Ex.PW7/A. Crl. Appeal 507-SB of 1998 -3- Rough site plan Ex.PW8/A was prepared. SI Ravel Singh recorded the statements of the witnesses. Inquest report Ex.PW8/B was prepared. On 15.2.1995 SI Ravel Singh arrested the appellants and their jamatalashi memo Ex.PW8/C was prepared.
Upon completion of investigation and presentation of challan, followed by commitment of the case to the Court of Sessions, all the appellants were charge sheeted for offences under Sections 498-A, 304-B and 302/34 IPC, to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution had examined Dr.Tejpal Singh, Medical Officer, Civil Hospital, Samrala as PW1, Tripata Devi as PW2, Dr. S.K.Sharma as PW3, ASI Ajmer Singh as PW4, HC Jagjit Singh as PW5, HC Sat Pal Singh as PW6, ASI Charanjit Singh as PW7, SI Ravel Singh as PW8 and Dr. Manish Bansal as PW9.
When examined under Section 313 Cr.P.C., all the appellants denied the allegations regarding the demand of dowry, etc. and setting Smt. Neelam on fire on 12.2.1995 by sprinkling kerosene on her. They admitted the factum of marriage of Rajinder Kumar with Neelam. It was stated that intimation was sent to the parents of Smt. Neelam through Lakhpat son of Ram Dhan that Neelam had received burn injuries accidentally when Crl. Appeal 507-SB of 1998 -4- the stove burst while preparing the tea in the morning. It was also admitted that Neelam was brought to Civil Hospital, Samrala with 95% burn injuries on her but it was denied that she made any statement or put her thumb impression thereon. The knowledge of any treatment given to her at Samrala as first aid was denied for want of knowledge. The case was said to be false and the statement of Neelam was alleged to be fabricated by the Investigating Officer in connivance with Dr. Tejpal Singh under the influence of parents of Neelam and Neelam was in unconscious condition. It was admitted that SI Ravel Singh had visited their house and inspected the place on 12.2.1995 but no recovery of any article was effected there from. The burst stove was shown to him. The witnesses were said to be false. Any demand of dowry or harassment caused to Neelam was denied. It was also claimed that the case had been falsely registered.
In addition to the above, appellant Rajinder Kumar also stated that he was informed of the occurrence at his kariana shop and immediately, he alongwith his father Ram Dhan rushed to the house and took the injured to the hospital and on the asking of the doctor, they started from Samrala to Ludhiana with Neelam but they were stopped in front of Police Station Samrala. They were taken by the police to the Police Station where there were 300-400 persons present with his father-in-law.
Crl. Appeal 507-SB of 1998 -5- In defence, the appellants examined Kulwant Singh as DW1, Amarjit Singh @ Ajit Singh as DW2, Sunita Rani as DW3, Pawan Kumar as DW4 and Jagtar Singh as DW5.
The trial Court believed the prosecution version and held that the appellants had common intention and common cause and they all participated in committing the heinous crime and, accordingly, convicted and sentenced the appellants, as mentioned above.
It may be noticed here that when the appeal came up for hearing on 15.3.2010, learned counsel for the appellants produced death certificate issued by Local Registrar, Births and Deaths, Municipal Council, Samrala in respect of appellant Champa Rani as per which said Champa Rani had since died on 6.3.2003. Learned State counsel also produced a short affidavit of Ravinder Loomba, DSP, Samrala wherein it was stated that the factum of death of Champa Rani stood duly verified. In view of the death of Champa Rani, learned counsel representing her submitted that her appeal stood abated. Accordingly, an order in that regard was passed.
Learned counsel for the appellants has submitted that dying declaration Ex. PC is a highly suspicious document and, therefore, no reliance be placed on the same for maintaining the conviction of the appellants. Moreover, instead of SI Ravel Singh Crl. Appeal 507-SB of 1998 -6- himself recording the dying declaration, he should have approached the Illaqa Magistrate to record the same. It has also been submitted that PW2 Tripata Devi, mother of the deceased, being an interested witness, is not worthy of credence. It is further argued that the defence plea was more probable than the prosecution version as the deceased had received accidental injuries when the stove upon which she was preparing tea in the morning, burst and she received 95% burn injuries. She was rushed to the hospital by her brother-in-law. However, lateron, the prosecution fabricated the dying declaration under the influence of parents of the deceased.
Learned State counsel has submitted that the prosecution had brought sufficient evidence on the record to prove its case beyond reasonable doubt and, therefore, the conviction and sentences of the appellants be maintained.
I have perused the evidence with the assistance rendered by learned counsel for the parties.
It has come in the testimony of PW1 Dr. Tejpal Singh that on 12.2.1995, Neelam was brought to the Civil Hospital, Samrala at 10.40 a.m. with 95% burn injuries. After giving her first aid, she was referred to Civil Hospital, Ludhiana. Till the time she remained in Civil Hospital, Samrala, no attendant was with her. He then sent information Ex. PA to the police at 10.45 a.m., Crl. Appeal 507-SB of 1998 -7- pursuant to which SI Ravel Singh reached there and moved application Ex. PB on which he made endorsement Ex. PB/1. The endorsement Ex. PB/1 reads as under:-
"Lady is telling her name and her address correctly as per mentioned in OPD register. She is also well oriented in time, place and person and wants to give her statement. Her statement may be recorded.
Sd/-
12.2.1995."
After PW1 Dr. Tejpal Singh made the aforementioned endorsement Ex. PB/1, SI Ravel Singh recorded statement Ex. PC of Neelam in his presence which was read over to the injured. In that regard, the doctor made the following endorsement Ex. PC/1:-
"Pulse about 120/m/very feeble. BP not recordable. Patient conscious and fully oriented in time, place and person and recorded statement in front of me.
Sd/-
Dr. Tejpal Singh 12.2.1996 12.00 p.m."
The doctor also testified that Neelam thumb marked her statement. To the same effect was the testimony of PW8 SI Crl. Appeal 507-SB of 1998 -8- Ravel Singh. He proved ruqa Ex. PA received from Civil Hospital, Samrala, request Ex. PB made by him to the doctor and statement Ex. PC of Neelam which was recorded by him while the doctor remained present there and made endorsement Ex. PC/1 under his signatures. He also testified that the statement of Neelam was read over to her and she admitted the same to be correct and put her thumb impression. The statement was, thereafter, sent to the Police Station for registration of the case.
During cross-examination, PW1 Dr. Tejpal Singh deposed that parents of Neelam had met him in the hospital in the afternoon and it was Kashmiri Lal, father of Neelam, who removed her to Ludhiana hospital. He denied that the person having 95% burns would be unable to understand. He also denied that Neelam was unconscious when she was brought to the hospital or that she remained unconscious till the time she was in the hospital. He further denied that the statement of Neelam had been fabricated afterwards.
Similarly, PW8 SI Ravel Singh during cross-
examination stated that the ruqa from the hospital was received at Police Station Samrala at 11.00 a.m. He reached Samrala hospital at 11.15 a.m. and met the doctor, who was in the emergency ward. He then prepared request Ex. PB while standing there. He took 15 to 20 minutes in its preparation. The Crl. Appeal 507-SB of 1998 -9- doctor also made the endorsement thereon soon after he had written. He admitted it to be correct that on receipt of ruqa Ex. PA in the Police Station, he came to know that Neelam was admitted in the hospital with 95% injuries but he had no information as to whether she had been referred from Civil Hospital, Samrala to CMC, Ludhiana, Civil Hospital, Ludhiana or DMC, Ludhiana. Though from the Police Station to Civil Hospital, Samrala, the Courts of Judicial Magistrate and Executive Magistrate fell on the way and the Courts were open yet he did not approach any one of them as the doctor was present in the hospital and the victim was in the emergency. He admitted that he did not mention the time when he made request to the doctor but went on to explain that it was just by chance. He added that no one had met him from the parents' side of Neelam before her statement was recorded and even from her in-laws' side. Neither the appellant nor any one else met him. He further stated that the victim gave her statement by speaking clearly and that when he had asked as to how she has suffered injuries, she had informed him as mentioned in statement Ex. PC and she spoke all those things by herself which were recorded. He had also enquired from her as to whether she would put her signatures or thumb impression and she had replied that she would put her thumb impression. He denied the suggestion that he never visited Civil Hospital, Samrala nor received ruqa Ex.PA or in connivance with the doctor Crl. Appeal 507-SB of 1998 -10- had fabricated the ruqa Ex. PA, application Ex. PB, endorsement Ex. PB/1, statement Ex. PC and endorsement Ex. PC/1 in the Police Station after detaining the accused persons and at the instance of parents of Neelam. He also denied the suggestion that the victim remained unconscious throughout the time when she was brought from the place of occurrence till her death.
The prosecution had examined PW2 Tripata Devi, mother of deceased Neelam, who testified that the appellants, who were husband, mother-in-law, sister-in-law and father-in-law of her daughter, had been harassing her daughter for bringing inadequate dowry. They used to give her beatings and turn her out of their house. She further stated that on 12.2.1995, she learnt from a person, who came to her house at Ludhiana that Neelam had been set on fire by the appellants by pouring kerosene on her body and that she had been admitted in Civil Hospital, Samrala. Accordingly, she alongwith her husband and other relatives went to Samrala hospital where her daughter Neelam informed her that Rajinder had gagged her mouth with a shawl, Champa put kerosene on her body, Rano handed over a match box to Ram Dhan, who had set her on fire. In cross- examination, she stated that the message was received from a person about the occurrence on 12.2.1995 at about 2.30 p.m. and, accordingly, she had reached the Samrala hospital at about Crl. Appeal 507-SB of 1998 -11- 4.00 p.m. At that time, Neelam was admitted in the hospital and lying in a room. She also testified that statement of Neelam had already been recorded before the arrival of the witness there. Infact it was the doctor, who had told her so. Injured Neelam was, thereafter taken in a car to Ludhiana.
From a perusal of the ruqa Ex. PA, it is apparent that it had been written by Dr. Tejpal Singh, EMO, Civil Hospital, Samrala on 12.2.1995 at 10.45 a.m. On receipt of the same, SI Ravel Singh reached Civil Hospital, Samrala and submitted application Ex. PB to the doctor about the fitness of the victim to make statement. Pursuant to the same, PW1 Dr. Tejpal Singh made endorsement Ex. PB/1 that the victim was well oriented in time, place and person and wanted to give her statement and, therefore, it be recorded. Statement Ex. PC of Neelam was, thereafter, recorded by SI Ravel Singh and upon its completion, endorsement Ex. PC/1 was made by Dr. Tejpal Singh on 12.2.1995 at 12.00 p.m. to the effect that the patient had remained conscious and fully oriented in time, place and person and her statement was recorded in his presence. SI Ravel Singh then made endorsement that the statement revealed commission of offences under Sections 307/498-A/34 IPC and, therefore, FIR be registered. This endorsement was made on 12.2.1995 at 12.30 p.m. and on its basis FIR Ex. PW4/A was registered at Crl. Appeal 507-SB of 1998 -12- Police Station Samrala on 12.2.1995 at 12.40 p.m. The recording of the FIR concluded at 1.30 p.m. and the special report was received by the Illaqa Magistrate shortly thereafter, i.e. on 12.2.1995 at 2.00 p.m. Mere fact that neither SI Ravel Singh nor Dr. Tejpal Singh had mentioned the time as to when the request had been submitted or the certificate given about the fitness of the victim to make the statement, is not sufficient to hold that the statement Ex. PC had never been recorded during the lifetime of Neelam or that it had been fabricated later on. Once the recording of statement Ex. PC of Neelam was completed, Dr. Tejpal Singh had clearly mentioned the date and time when he made endorsement Ex. PC/1. On the basis of the statement Ex. PC and the endorsement made thereupon by SI Ravel Singh, FIR was registered on the same day at 12.40 p.m. and the special report was in the hands of the Illaqa Magistrate within 1½ hours thereafter.
Similarly, as regards the objection of the defence that instead of recording the statement of the victim himself, SI Ravel Singh ought to have associated either the Illaqa Magistrate or the Executive Magistrate for the said purpose, PW8 SI Ravel Singh testified that he had learnt that the doctor was very much present in the hospital and further that he did not know as to whether the victim was still in the Samrala hospital or removed to some Crl. Appeal 507-SB of 1998 -13- hospital at Ludhiana. Moreover, though he had been informed by Dr. Tejpal Singh that the victim had been brought to the hospital with 95% burn injuries and was serious yet he did not know as to whether she was in a fit condition to make statement or not. Only after reaching the hospital and submitting application Ex. PB before Dr. Tejpal Singh that he learnt that she was well oriented in time, place and person and wanted to give statement and, therefore, her statement may be recorded. At that point of time, SI Ravel Singh started recording the statement of the victim. Therefore, the prosecution case cannot be thrown out on the ground that no attempt was made by SI Ravel Singh to seek the assistance of the Magistrate for the purpose of recording the statement of the victim.
PW2 Tripata Devi, mother of the deceased, also corroborated the prosecution case regarding the victim being harassed, beaten and turned out of the house by her in-laws. She also confirmed the factum of dying declaration made by her daughter Neelam when in the company of her husband and other relatives, she reached Samrala hospital after being informed by some persons that her daughter had been set on fire by the appellants and she was lying admitted in the said hospital. Though she was cross-examined at length yet no material could be brought on record by the defence from which it could be Crl. Appeal 507-SB of 1998 -14- inferred that she had falsely implicated the appellants. She had also deposed that by the time she and others reached at Samrala hospital, the police had already recorded the statement of her daughter Neelam. She also stated that her daughter Neelam was illiterate and she had studied only upto first and second class and that Neelam had not written any letter to her prior to the occurrence. Merely because no written complaint had been made by PW2 Tripata Devi to the higher officers regarding the harassment of her daughter at the hands of the appellants at any time prior to the occurrence, is no ground to disbelieve her testimony. The anxiety of the parents of the girl is always to make their daughter stay in the matrimonial home. As and when any harassment is meted to their daughter, they would go to the house of the in-laws of the daughter in order to make them understand. However, they would not start submitting written complaints to the high-ups as such an attempt of theirs would further aggravate the situation. Moreover, it had come during the cross-examination of PW2 Tripata Devi that on 10.2.1995, she had gone to the house of the appellants to see her daughter Neelam, who told her that the appellants were harassing her. After return, the witness told this fact to her husband. On 11.2.1995, she and her husband had to go to Samrala but could not do so due to the death of their relative. On the following day, i.e. 12.2.1995, the incident in question took place.
Crl. Appeal 507-SB of 1998 -15- As regards the objection of the defence that the testimony of PW2 Tripata Devi be not believed as she is mother of the deceased, it is generally seen that the married women always confide in their relatives, most of the time their mothers while complaining about harassment meted out to them by in- laws for bringing inadequate dowry. Therefore, the testimony of PW2 Tripata Devi cannot be rejected merely because she is mother of the deceased.
It has not been disputed by the appellants that the marriage of Neelam, since deceased, was solemnized with appellant Rajinder Kumar about six years before the occurrence. From the medical evidence, it is clear that the death of Neelam had taken place otherwise than under normal circumstances. From statement Ex. PC made by Neelam, which after her death has assumed the nature of dying declaration as well as from the testimony of PW2 Tripata Devi, it stands established that the appellants have been harassing and beating the deceased on account of bringing inadequate dowry. Therefore, under Section 113-B of the Evidence Act, the Court is entitled to draw the presumption that the appellants had caused the dowry death. Once such a presumption is drawn, the onus shifts upon the appellants to prove their innocence and in the event of their failing to do so, the death of Neelam has to be called dowry death and Crl. Appeal 507-SB of 1998 -16- her husband and other relatives deemed to have caused the same making them liable for committing the offence under Section 304-B IPC.
In order to rebut the presumption, the defence relied upon the statements made by the appellants during their examination under Section 313 Cr.P.C. as well as the testimonies of DW1 Kulwant Singh, DW2 Amarjit Singh @ Ajit Singh, DW3 Sunita Rani, DW4 Pawan Kumar and DW5 Jagtar Singh.
During their examination under Section 313 Cr.P.C., the appellants pleaded that on 12.2.1995 at about 8.00 a.m. all of them as well as Neelam, since deceased, were present in their house at Samrala. At about 8.30 a.m. Rajinder Kumar and Ram Dhan left for their shop situated opposite to Civil Hospital, Ludhiana. At about 10.00 a.m. their neighbour Kulwant Singh came and informed them that Neelam had caught fire because of bursting of stove. This information was received in the presence of Ajit Singh, who ran grocery shop adjacent to their shop. At this, both Rajinder Kumar and Ram Dhan reached their house where Neelam was lying burnt and close to her a burst stove was lying. Nobody from their family was present at the scene of the occurrence except Neelam. Rajinder Kumar appellant alongwith Kulwant Singh took Neelam to Civil Hospital, Samrala. On the way, he met his mother Champa Rani and sister Rano. The Crl. Appeal 507-SB of 1998 -17- doctor present in the hospital gave treatment to Neelam and after about half an hour, he asked the appellants to take her to Ludhiana. They started from Civil Hospital, Samrala for Ludhiana at 11.15 a.m. and when they reached in front of Police Station Samrala, their vehicle was intercepted and all of them alongwith Neelam taken to the Police Station where the appellants were detained and falsely implicated. They also stated that Neelam was unconscious when she was brought to Civil Hospital, Samrala and continued to remain unconscious throughout. Her statement had been fabricated by the police in connivance with her parents.
The emphasis of the defence case is on the bursting of the stove which led to Neelam receiving burns to the extent of 95%. However, when PW8 SI Ravel Singh and PW7 ASI Charanjit Singh went to the house of the appellants on 12.2.1995, a match box, an oil container and one partly burnt shawl were found present. They were recovered and taken into possession through recovery memo Ex.PW7/A. In case, it was a case of bursting of stove, its pieces would have been found by the police while effecting the recovery of incriminating articles from the spot. Apparently, from the perusal of the recovery memo Ex. PW7/A, it is made out that there was no such stove in burnt condition found at the place of the occurrence. So much so that none of the Crl. Appeal 507-SB of 1998 -18- aforementioned witnesses was cross-examined to show that the burst stove was also present at the scene of the occurrence or that its presence had not been intentionally shown by the police.
Even DW1 Kulwant Singh, whose house was situated near the house of the appellants, did not mention about the bursting of the stove. He only deposed that at about 10.30 a.m., when he was present in the house, he heard the cries emanating from the house of the appellants of being burnt and on reaching there, he found that Neelam had received burns and was rolling on the ground. In cross-examination, he admitted that he did not enquire from Neelam as to how she caught fire. Similarly, DW2 Amarjit Singh @ Ajit Singh, who is running a shop near the shop of the appellants, deposed that he did not go anywhere after learning that Neelam had caught fire due to the bursting of stove as was told by Kulwant Singh, who had reached there. He only went to the hospital. This much part of his statement that Kulwant Singh had told about Neelam catching fire due to bursting of stove runs counter to the testimony of DW1 Kulwant Singh as the latter had not mentioned anywhere that he had informed Amarjit Singh about the victim receiving burns because of bursting of stove. Apparently, DW1 Kulwant Singh, who was residing in the neighbourhood of the appellants and DW2 Amarjit Singh, who had his shop situated near the shop of the appellants, Crl. Appeal 507-SB of 1998 -19- had testified in order to help the appellants.
DW3 Sunita Rani had deposed that deceased Neelam remained student of Model School, Shivpuri, Ludhiana of which she was the Principal, from 2.2.1983 to 8.4.1988 and she had studied upto 8th class. She proved certificate Ex. DW3/1 issued in that regard. In cross-examination, she admitted that in the admission register brought by her, there was no over writing but it was wet and, therefore, it appeared so. She also admitted that there was no house number, address or the city mentioned in the certificate Ex. DW3/1. In view of the above evidence, it cannot be said that Neelam was literate enough to write a letter, more so when her mother PW2 Tripata Devi had specifically deposed in her cross-examination that she was illiterate and had studied only upto first or second class.
DW4 Pawan Kumar had testified that his taxi was hired by Rajinder Kumar for taking his wife from Civil Hospital Samrala to Ludhiana and when they were on their way to Ludhiana, they were stopped by the police. In cross-examination, he admitted that he knew the appellants before hiring the taxi. He also admitted that no document of his vehicle was taken by the police. Apparently, this witness has been produced by the appellants in order to come up with a false version of being detained by the police when they were allegedly taking the victim Crl. Appeal 507-SB of 1998 -20- from Civil Hospital, Samrala to Civil Hospital, Ludhiana.
DW5 Jagtar Singh, Home Guard No. 33414, Samrala was examined by the defence to enquire about the entries made in the DDR of 1995 and register No. 19. However, in his cross- examination, he admitted that he never remained Munshi in the Police Station nor any of the entries were in his hands nor he knew about the whereabouts of the case property. As such no benefit accrues to the appellants from his testimony.
Once, it is shown that the appellants have not been able to rebut the presumption raised under Section 113-B of the Evidence Act, the death of Neelam has to be termed "dowry death" making out commission of offence under Section 304-B IPC. Similarly, the allegations of harassment and giving of beatings on account of bringing inadequate dowry also stand established which would prove commission of offence under Section 498-A IPC. However, at the same time, the Court has to consider the fact as to whether the prosecution had been able to substantiate its case against appellant Sudarshana Devi, who is sister-in-law of the husband of the deceased. The role attributed to her in the dying declaration was of bringing a match box. No other role like catching hold of the victim had been assigned to her. She might be present at the house of her parents at the relevant date but that is not sufficient to convince the Court about Crl. Appeal 507-SB of 1998 -21- her participation in the crime. In any case, she deserves the benefit of doubt.
The sentences of imprisonment and fine imposed upon Rajinder Kumar and Ram Dhan appellants are commensurate with the offences committed by them. Therefore, no interference is called for on that count.
Resultantly, the conviction and sentence of appellant Sudarshana Devi is set aside. She is on bail. Her bail bonds and sureties shall stand discharged. The conviction and sentence of Rajinder Kumar and Ram Dhan are upheld. The sentences of imprisonment of both of them for the offences under Sections 304-B and 498-A IPC shall run concurrently.
As the appeal of Champa Rani has already been disposed of on 15.3.2010, as having been abated, no further orders are required to be passed.
The appeal is, accordingly, disposed of.
( T.P.S. MANN )
May 13, 2010 JUDGE
ajay-1