Punjab-Haryana High Court
Shakuntla Devi vs State Of Haryana on 5 April, 2013
Author: Rekha Mittal
Bench: Rekha Mittal
Criminal Appeal No. 525-SB of 2000 -1-
In the High Court of Punjab and Haryana at Chandigarh
Date of Decision: 5.4.2013
Criminal Appeal No. 525-SB of 2000
Shakuntla Devi
---Appellant
versus
State of Haryana
---Respondent
Criminal Appeal No. 531-SB of 2000
Satish
---Appellant
versus
State of Haryana
---Respondent
Coram: Hon'ble Mrs. Justice Rekha Mittal
Present: Mr. G.S.Sandhu, Advocate
for the appellants
Mr. Dhruv Dayal, Deputy Advocate General, Haryana
***
REKHA MITTAL, J.
By way of this order, I shall dispose of two appeals namely, Crl. Appeal No. 525-SB of 2000 titled "Shakuntla Devi vs. State of Haryana" and Crl. Appeal No. 531-SB of 2000 titled "Satish Vs. State of Haryana" arising out of the same judgment of conviction and order of sentence dated 6.6.2000 and 7.6.2000, respectively, in Sessions Case No. 124 of 1999 with regard to FIR No. 728 dated 6.9.1997 registered in Police Station Bhutana, District Karnal, for offence under Sections Criminal Appeal No. 525-SB of 2000 -2- 304-B and 498-A IPC whereby the appellants, Shakuntla Devi and Satish have been convicted and sentenced as detailed hereinbelow and their co-accused namely, Babu Ram and Suresh have been acquitted of the charges:-
Shakuntla Devi and Satish Under Section To undergo rigorous imprisonment for two years and 498-A IPC to pay fine of `1000/- each and in default of payment of fine to undergo rigorous imprisonment for three months.
Under Section To undergo rigorous imprisonment for ten years 304-B IPC Both the sentences were ordered to run concurrently. The period for which the convicts have remained in judicial custody shall be set off against the sentences awarded to them.
The present case relates to death of Saroj wife of appellant Satish. Appellant-Shakuntla Devi is the mother-in-law, the accused acquitted by the trial Court namely, Babu Ram is the father-in-law and Suresh is the elder brother of the husband of the deceased. The occurrence in question took place on the intervening night of 5/6th September, 1997 after mid night.
On 6.9.1997, on receipt of message from General Hospital, Karnal, regarding admission of Saroj with burn injuries, ASI Rajbir Singh went to General Hospital, Karnal and obtained ruqa along with Medico Legal Report of Saroj. An application was submitted to the Duty Magistrate, Karnal, Sh. Mewa Singh, for recording statement of Injured-Saroj. Sh. Mewa Singh came to the hospital, sought opinion of Criminal Appeal No. 525-SB of 2000 -3- the doctor regarding fitness of the injured to make statement and recorded her statement wherein she implicated the accused on the allegation that demand of dowry was being made by the accused and she was set on fire by her husband-Satish and mother-in-law Shakuntla Devi. On the basis of statement (Ex. PD) of the injured-victim, a formal FIR was registered. On completion of necessary investigation formalities, the accused were challaned for commission of offence punishable under Sections 304-B and 498-A IPC.
The case was committed to the Court of Sessions after necessary compliance in terms of Section 207 Cr.P.C. as offence under Section 304-B IPC is triable exclusively by the Court of Sessions. Accused Shakuntla Devi and Satish were charge sheeted for offence under Section 302/34 IPC while all the accused were also charge sheeted for offence under Sections 304-B and 498-A IPC. The accused did not plead guilty and claimed trial.
To prove its case, the prosecution examined as many as 12 witnesses namely, Constable Mehar Singh PW-1, Constable Malkiat Singh PW-2, Sh.Mewa Singh, JMIC, Ferozepur Jhirka District Gurgaon PW-3, Dr. Ravinder Arora, PW-4, Dr. Sunil Kumar Midha, PW-5, Constable Prem Kumar PW-6, ASI Jarnail Singh PW-7, HC Sat Pal PW-8, Dr. Dinesh Sharma, PW-9, Krishan Kumar, brother of the deceased PW-10, Sitar Singh PW-11 and Rajbir Singh ASI, Investigating Officer, PW-12.
The accused were examined separately in terms of Section Criminal Appeal No. 525-SB of 2000 -4- 313 Cr.P.C. wherein they have denied the incriminating circumstances appearing in evidence against them and pleaded their innocence and false implication. They have set out a plea that the deceased was a quarrelsome lady and she had been persistently raising a demand to live separately and for that reason she committed suicide by setting herself on fire on the day her brother and other relatives of the accused were available on the first floor of the house wherein the occurrence in question took place on the ground floor. They examined Ram Rattan DW-1, Prem Chand DW-2, Jagdish DW-3, Constable Ram Niwas DW- 4 and HC Jai Parkash DW-5 in their defence.
Before adverting to the submissions and counter submissions made by counsel for the parties and to adjudicate the merits of the case, it is appropriate to make a brief reference to the statements of the material witnesses examined by the prosecution.
Sh. Mewa Singh, Judicial Magistrate Ist Class, Ferozepur Jhirka, District Gurgaon, recorded the statement of the victim (in common parlance known as dying declaration). The material part of his deposition reads as follows:-
"....... on 6.9.1997, application Ex. PC was submitted by Rajbir Singh ASI, Incharge Police Post Taraori Police Station Butana, for recording statement of Smt. Saroj, who was lying admitted in the hospital with burn injuries. He visited Civil Hospital, Karnal and sought opinion of the Medical Officer with regard to the condition of the patient, Criminal Appeal No. 525-SB of 2000 -5- vide endorsement Ex. PC/1 and the patient was opined fit to make statement, vide Ex. PC/2. He recorded statement Ex. PD of Saroj wife of Satish. He gave certificate Ex. PD/1 on the foot of the said statement. He put questions to the injured in Hindi and she was able to understand and answer the questions in Hindi."
Dr. Ravinder Arora PW-4 is the doctor who examined the patient on her admission in the hospital. He proved the Medico Legal Report Ex. PE. He sent ruqa Ex, PE/1 intimating the police with regard to admission of the injured with burn injuries.
Dr. Sunil Kumar Midha, PW-5, along with Dr. Sant Lal Chandna, conducted post mortem on the dead body of Saroj on 6.9.1997. He has proved the post mortem report Ex. PF/1. As per the opinion given on the basis of post mortem examination, the death was because of shock due to burns which were ante mortem in nature and sufficient to cause death in the normal course of events.
Dr. Dinesh Sharma, Medical Officer, Civil Hospital, Karnal, PW-9, is the doctor who gave opinion regarding fitness of the injured to make statement in view of request made by Sh. Mewa Singh, JMIC, Karnal As per his deposition, on 6.9.1997 application Ex. PC was produced before him in the presence of Sh. Mewa Singh, JMIC, Karnal. He examined Smt. Saroj and found that she was fit to make statement at 7.41 a.m. He gave his opinion Ex. PC/2 in writing, under his signatures.
Criminal Appeal No. 525-SB of 2000 -6-
A perusal of the judgment of the trial Court reveals that the statement of the victim recorded by the Magistrate is the sole basis of recording conviction of the appellants. A relevant extract of the said statement (recorded in Hindi but translated in English), Ex. PD along with certificate recorded by the Magistrate underneath the statement reads as follows:-
"Statement of Saroj wife of Satish caste Jogi resident of Ward No. 5, Traori, District Karnal, on SA.
Question: How this occurrence happened with you? Answer: I had a quarrel with my mother-in-law. My husband brought a bottle of oil. It is a matter of yesterday night. Shakuntala, Babu Ram, Suresh and Satish had been demanding dowry from me. I was burnt only by my husband and mother-in-law. No one else was present on the spot. Nobody came to rescue me.
Question: How many children you have?
Answer: I had one son who had died.
Question: Whether you want to say any thing more?
Answer: No.
RO & AC sd/-
Mewa Singh
JMIC (Duty)
Karnal
Certified that the contents of the statement have been read over and explained to the deponent in simple Hindi. Above statement has been recorded in the presence of Doctor Dinesh Sharma of Civil Hospital, Karnal. It is the true and correct version of statement deposed by Smt. Saroj and nothing has been added Criminal Appeal No. 525-SB of 2000 -7- thereto or substracted therefrom. Due to 100% burns opined by the doctor no T.I can be obtained hereinabove.
sd/-
Place:Civil Hospital, Karnal JMIC (Duty)
Karnal"
Counsel for the appellant submits that the doctor did not render any opinion that the patient was mentally fit to make statement. The certificate/opinion of the doctor 'fit to make statement' is not sufficient to prove that the injured-victim was in a fit state of mind to make statement or to understand the implications of dying declaration. He has argued with vehemence that subsequent to completion of recording of statement, the doctor did not certify that the victim remained fit and conscious through out during the course of recording of her statement by the Magistrate. The injured victim sustained 100% burns, therefore, she was in a critical condition who eventually died the same day i.e. 6.9.1997. It is further argued that except the so called statement made by the injured-victim, there is no evidence on record that the appellants ever made any demand of dowry or the deceased was being subject to cruelty, maltreatment in connection with that demand. The brother of the deceased failed to support the prosecution case and he has categorically denied that the accused ever raised any demand of dowry or the deceased is the victim of any such demand. He has further argued that the prosecution has failed to prove the ingredients of Section 304-B IPC that the deceased was subject to cruelty 'soon before her death' in connection with demand of dowry, Criminal Appeal No. 525-SB of 2000 -8- therefore, the judgment of conviction passed by the learned trial Court is liable to be set aside. He has made a faint attempt to argue that at the most, appellant Satish, husband of the deceased, can be held guilty of offence punishable under Section 306 IPC and he may be sentenced accordingly for the commission of said offence.
Counsel for the State, on the other hand, submits that no fault can be found with the judgment of conviction and order of sentence passed by the learned trial Court which is based upon detailed appreciation of evidence adduced on record in the light of charge sheet framed against the accused and the legal aspects involved. It is submitted that it is difficult to believe that a young girl of 20 years would like to eliminate herself on a small issue of having a separate residence. The accused have failed to probablise much less prove their defence that the deceased ever raised the demand for a separate residence and/or committed suicide on account of non-fulfillment of that demand.
I have given my thoughtful consideration to the rival submissions made by counsel for the parties and gone through the records of the trial Court.
There cannot be any dispute regarding the settled position of law that the statement made by the victim as to the cause of death can become the basis of conviction even if the said statement is not made on oath and the accused does not get an opportunity to cross examine the maker of the statement. The principle on which the dying Criminal Appeal No. 525-SB of 2000 -9- declaration is admitted in evidence, is based on the legal maxim "nemo moriturous proesumitur mentiri- a man will not meet his maker with a lie in his mouth". It is for this reason that the requirements of oath and cross examination are dispensed with. However, in the case in hand, statement of the injured victim was recorded on oath by a Magistrate.
This brings the Court to the issue of absence of certification by the doctor that the injured remained fit during the course of recording of her statement. The failure to obtain opinion of the doctor regarding fitness and the absence of opinion with regard to mental fitness of the victim came up for consideration before the Courts on a series of occasions. The Hon'ble Supreme Court of India in Govindappa vs. State of Karnataka 2011 (6) R.C.R.(Criminal) 288 has held that "what is essential required is that the person who recorded the dying declaration must be satisfied that the deceased was in a fit state of mind. The certification by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise. The evidence of doctor (PW-
7) clearly shows that the deceased was in a sound state of mind while giving the statement before the Tehsildar (PW-12)".
In Nallapati Sivaiah vs. Sub-Divisional Officer, Guntur, A.P. 2007(4) R.C.R.(Criminal) 439, the Hon'ble Supreme Court laid down the principles governing declaration and the same are summed up as quoted hereinbelow:-
(i) There is neither rule of law nor of prudence that dying Criminal Appeal No. 525-SB of 2000 -10- declaration cannot be acted upon without corroboration.
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
(iii) This Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.
vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth.
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.
In Laxman vs. State of Maharashtra 2002 (4) RCR Criminal Appeal No. 525-SB of 2000 -11- (Criminal)149, the certificate given by the doctor stated that the patient was conscious and the counsel for the appellant raised an issue that as the doctor did not give certificate that the injured was in a fit state of mind and only certificate that the patient was conscious, the same is not sufficient to say that the injured victim made statement in a fit state of mind and, therefore, the same cannot form the basis of conviction. The Hon'ble Supreme Court in para 5 of the judgment while referring to the observations of the Apex Court in Paparambaka Rosamma and others vs. State of Andhra Pradesh 1999(7) SCC 695 to the effect that "..........in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a fit of mind at the time of making declaration" held that it has been too broadly stated and it is not the correct enunciation of law. Further held that it is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosama and others vs. State of Andhra Pradesh 1999(7)SCC 695 must be held to be not correctly decided and the Criminal Appeal No. 525-SB of 2000 -12- Supreme Court affirmed the law laid down in Koli Chunilal Savji and another vs. State of Gujrat, 1999(9) SCC 562.
The doctor in the present case gave a certificate "fit to make statement". This includes mental fitness also. Had she not been mentally fit, he could not have given such a certificate. The counsel could not invite attention of this Court to any law that the doctor is required to give fitness certificate in a particular format and/or mentioning mental fitness separately. This apart, a perusal of the statement of the injured-victim in response to the first question would reveal that she has levelled allegations against four persons with regard to demand of dowry but she has indicted only her husband and mother- in-law for setting her on fire. Had she not been mentally fit, she could not have made a distinction between these two important and vital declarations. She has clearly stated that except her husband and mother-in-law nobody else was present on the spot, thus expressing no grievance against her father-in-law and brother-in-law (Jeth) for her condition of receiving burn injuries. The concluding lines of the statement of Judicial Magistrate PW-3, in chief examination read as follows:-
"I had put questions to the injured in Hindi and she was able to understand and answer the questions in Hindi."
During cross examination, there is no challenge to his observations that the injured-victim was capable to understand and answer the questions. The observations made by the Judicial Criminal Appeal No. 525-SB of 2000 -13- Magistrate proves that the victim was fully and mentally conscious of what she had deposed in response to the questions raised to her. In this view of the matter, the mere fact that the doctor concerned did not record his certificate subsequent to the completion of recording of her statement is of no significance to extend any benefit to the appellants. The prosecution has led tangible and convincing evidence on record that the victim was in a fit state of mind at the time when her statement was recorded by the Magistrate.
The accused in their statement recorded under Section 313 Cr.P.C. raised a half hearted plea that the people living in the neighbourhood when attracted to the spot on hearing hue and cry, instigated the victim to make a statement indicting the accused. There is no evidence on record that any person living in the neighbourhood of the accused had any ill will or enmity against the accused to instigate the victim to implicate her family members. None of the members of her parental family statedly met the victim by the time her statement was recorded by the Magistrate at 7.41 a.m. on 6.9.1997. The victim was shifted to the hospital by her in-laws family members. There is no evidence worthy of any weightage to record a finding that the statement made by the victim is the result of tutoring or prompting.
Now coming to another important aspect of the matter. Krishan Kumar PW-10, brother of the deceased, failed to support the prosecution case. He was declared hostile and was tested during cross examination by public prosecutor. He has even denied that he made a Criminal Appeal No. 525-SB of 2000 -14- statement Ex. PJ before the police. He has deposed to support the cause of the accused that the deceased had been raising a demand for living separately from her father-in-law and mother-in-law and for that reason she set herself on fire. It is unfortunate that a real brother of the deceased took a somersault and turned hostile. However, the Court cannot ignore that the time is a great healer and the family members of the deceased reconcile or even enter into out of Court settlement. However, a perusal of the statement of Krishan Kumar certainly indicates that there was quarrel in the family of the victim prior to the occurrence in question on 5.9.1997. The stand of Krishan Kumar that the deceased had been asking for separate living from her mother-in- law and father-in-law is falsified and belied in view of the statement of appellant-Satish. Satish, husband of the victim has stated under Section 313 Cr.P.C. that he separated from his parents and his parents were living in a separate house. The aforesaid plea falsifies their contention that the deceased raised a demand for separate residence from her in-laws or she committed suicide for non-satisfaction of her said demand. Even otherwise, the demand for a separate residence is a trivial issue and it is difficult to believe that a young lady would set herself on fire for such an insignificant matter. Taken from any angle, there is no merit in the contention of the appellants that the deceased committed suicide for a cause created by her or she was not subject to cruelty, harassment and maltreatment at the behest of the appellants on account of demand of dowry. The trial Court has rightly relied upon Criminal Appeal No. 525-SB of 2000 -15- the dying declaration of the victim to record a verdict of guilt against the appellants. There are no grounds to interfere in the findings recorded by the learned trial Court.
In view of what has been discussed hereinabove, there is no merit in the appeals and the same are accordingly dismissed. The judgment of conviction and order of sentence passed by the learned trial Court, are affirmed. The appellants, if on bail,be taken in custody to suffer the remaining sentence. Registry of this Court is directed to ensure that in case the appellants are on bail, their warrants of arrest are executed forthwith and they are taken in custody to undergo the remaining sentence.
Record of the trial Court be returned forthwith.
( REKHA MITTAL) JUDGE April 05, 2013 PARAMJIT