Punjab-Haryana High Court
State Of Punjab vs Jarnail Singh & Others on 30 January, 2009
Author: Nirmaljit Kaur
Bench: Mehtab S. Gill, Nirmaljit Kaur
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CASE NO.: Crl. Appeal No.456-DBA of 2001
DATE OF DECISION : January 30,2009
State of Punjab .......Appellant
Versus
Jarnail Singh & others
......Respondents
CORAM : HON'BLE MR. JUSTICE MEHTAB S. GILL
HON'BLE MS. JUSTICE NIRMALJIT KAUR.
PRESENT: Mr. S.S. Gill, Additional Advocate General, Punjab
Mr. C.M. Munjal, Advocate
for the respondents.
NIRMALJIT KAUR, J.
An FIR No.43 dated 21-05-1995 was registered at Police Station City Faridkot under Sections 302/34/498-A IPC against accused Jarnail Singh son of Gurmukh Singh, Pritam Kaur widow of Gurmukh Singh and Gurmukh Singh son of Atma Singh.
The facts, in short, are that Soma was the wife of accused No.1-Jarnail Singh. His wife received burn injuries. She was rushed to the G.G.S. Medical College/Hospital, Faridkot. Dying declaration was recorded on 16-05-1995, itself. As per this dying declaration, she caught fire by chance. She made all efforts to extinguish the fire, but she could not succeed. She further stated that when she came down, all the accused were present on the ground floor and they put off the fire by wrapping a Crl. Appeal No.456-DBA of 2001 -2- thick cloth around her. This dying declaration was recorded by the Sub Divisional Magistrate/Tehsildar who was deputed by the District Magistrate, Faridkot, on an application moved by the Investigating Officer. When Hakam Singh father of the deceased Soma came to know about this incident, he smelled something foul and, accordingly, moved an application before the District Magistrate, Faridkot who further directed the Sub Divisional Magistrate, Faridkot to record the statement of the injured in the presence of her parents. The Sub Divisional Magistrate, Faridkot, once again on 19-05-2005 recorded the statement, wherein, she stated that the previous statement was not disclosed to her and her thumb mark was obtained on the same under the threat of her in-laws. She further stated that she was beaten with hockey sticks for two days and no one was allowed to enter the house. According to the second dying declaration, all the accused had set her on fire. Thereafter, she was removed to D.M.C., Ludhiana, wherein, she was admitted on 23-05-1995. She died on 05-07-1995.
In order to arrive at the conclusion as to which one of the two dying declarations is correct and whether the same can be relied upon or not, it is necessary to re-appreciate and scrutinize the prosecution evidence.
The dying declaration recorded on 16-05-1995 suffers from various shortcomings. There is no certificate of the District Magistrate on record to show that Soma-deceased was in a fit medical condition to make the statement. The same was written in the handwriting of the Reader of the Tehsildar of the Executive Officer and not by the Executive Magistrate Crl. Appeal No.456-DBA of 2001 -3- himself. The prosecution, in any case, cannot rely upon this dying declaration as the contents of this dying declaration have completely exonerated the accused of any allegation. In fact, as per this dying declaration, the accused had rather tried to save her by putting a thick cloth on her in order to extinguish the fire.
With respect to the second dying declaration (Ex.PL) dated 19-05-1995, almost similar defects appear as also in the earlier dying declaration. This also has not been written by the Sub Divisional Magistrate but by the Reader of the Sub Divisional Magistrate. There is no certificate by the Magistrate that at the time of recording of the dying declaration- Soma (now deceased) was medically fit to make the statement. The dying declaration has been further recorded after a lapse of three days.
Taking into account the two dying declarations, the circumstances, under which, the same have been taken and the deficiencies apparent on the face of them, the stand in each of the dying declaration being totally contrary to each other, it would be highly unjust and dangerous to accept either of them. Both the dying declarations, therefore, will have to be ignored. In any case, once a dying declaration was recorded on 16-05-1995 by the Sub Divisional Magistrate/ Tehsildar, it is not understood as to why a second dying declaration was recorded. The benefit of the same will have to be given to the accused.
The case of the prosecution further collapses in view of the statement of the various witnesses.
Firstly, PW-1, Dr. Sarabjit Singh Sandhu, in his cross- examination, stated that the entries in the bed head ticket is not in his handwriting. He also stated that there was no smell of kerosene from the person of patient Soma. He also stated that there were no marks of beating Crl. Appeal No.456-DBA of 2001 -4- on the person of Soma.
Secondly, PW-6. Hakam Singh, father of the deceased Soma, deposed that neither the accused Jarnail Singh nor Gurmukh Singh and nor Pritam Kaur ever harassed or demanded dowry. He was, accordingly, declared hostile. The Public Prosecutor cross-examined Hakam Singh, who, although, at the first instance, admitted that he had submitted an application for recording the dying declaration of his daughter, took a `U' turn and changed his statement by submitting that his son took his thumb impression on blank paper. He himself had not given any application to the District Magistrate, Faridkot. He denied the contents of the application. In fact, he went on to say that his daughter was not in sound mind to make any declaration.
Thirdly, PW-7, Sukhwinder Kaur, who is neighbour of the deceased-Soma, deposed that Soma was neither beaten nor set on fire in her presence. She was also declared hostile. On cross-examination, she denied having made any statement to the police. She did not support the case of the prosecution.
In the face of these facts, we are left with no choice but to dismiss the present appeal against the judgment of Sessions Judge, Faridkot dated 06-12-2000 vide which, the accused have been acquitted. As already stated, neither of the two dying declarations can be taken into consideration for the purpose of convicting the accused. There is no other evidence. The father of the deceased-Soma has demolished the case of the prosecution by submitting in the cross-examination that his thumb impressions, on a blank paper, were used for the purpose of moving an application for recording the dying declaration the second time. Even Crl. Appeal No.456-DBA of 2001 -5- PW-7, Sukhwinder Kaur, who stays in the opposite house of the deceased- Soma, did not support the prosecution witness and was, accordingly, declared hostile. Even otherwise, no evidence has come forward to prove that the deceased was ever harassed/tortured or ill-treated by the accused. In fact, the father of the deceased has gone on to say that she was never ill-treated by her in-laws. Even Dr. Sarabjit Singh Sandhu, PW-1 has sworn in his testimony that there was no smell of kerosene oil from the body of the deceased at the time of medico legal examination which falsifies the story of the prosecution that the accused had sprinkled kerosene oil on the deceased and set her on fire. As per the second dying declaration, she was beaten by Hockey sticks but as per the evidence of PW-3 Dr. Sarabjit Singh, there were no marks of beating on the person of the deceased at the time of her medical examination.
In the face of the above facts, we find that there is no evidence to corroborate the prosecution story.There is no material to convict the accused, namely, Jarnail Singh and Pritam Kaur. They have been rightly acquitted of the charges framed against them.
The appeal is, accordingly, dismissed.
(NIRMALJIT KAUR) JUDGE (MEHTAB S. GILL) JUDGE January 30, 2009 gurpreet