Punjab-Haryana High Court
State Of Punjab ... Prosecutor vs Raju Masih on 18 March, 2009
Author: Uma Nath Singh
Bench: Uma Nath Singh, Daya Chaudhary
Murder Reference No.5 of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Date of decision: May 18, 2009
State of Punjab ... Prosecutor
versus
Raju Masih ... Respondent
CORAM: Hon'ble Mr.Justice Uma Nath Singh.
Hon'ble Mrs.Justice Daya Chaudhary.
Present: Ms.Gurveen H.Singh, Addl.AG, Punjab.
Mr.Gopal Mahajan, Advocate,
for the appellants.
...
UMA NATH SINGH, J.
This judgment shall also dispose of connected Criminal Appeal No.505-DB of 2008 filed by the accused appellants against the judgment of conviction and order of sentence dated 31.5.2008, passed by learned Additional Sessions Judge, Gurdaspur, in Sessions Case No.20 dated 30.3.2006, holding accused appellant Raju Masih guilty of offence under Section 302 IPC, and sentencing him to the extreme penalty of death sentence, whereas, convicting other two co-accused-appellants, namely Veena and Rinku under Section 302 read with Section 34 IPC, and sentencing them each to the imprisonment for life with a fine of Rs.5000/-; in default of payment of fine, to undergo further RI for one month. Accused appellant Raju Masih was also held guilty of offence under Section 316 IPC and other two co-accused appellants under Section 316 read with Section 34 IPC. Accused appellant Raju Masih was, thus, sentenced to undergo three years' RI with a fine of Rs.2,000/-; in default of payment of fine to further undergo RI for one month on the second count Murder Reference No.5 of 2008 2 under Section 316 IPC, and other two co-accused appellants to RI for two years with a fine of Rs.2,000/- each; in default of payment of fine, to further undergo RI for one month, under Section 316 read with Section 34 IPC.
Prosecution case originated in statement given by Gindo (PW5), mother of the deceased, vide Ex.PJ, to ASI Parsan Singh (PW9) of Police Station Sadar, Gurdaspur, on 1.1.2006. As per her statement, marriage of her daughter deceased Rama had been solemnized a year back on 25.4.2005 with accused appellant Raju Masih son of Sadiq Masih. She had given dowry as per her capacity at the time of marriage. The in-laws of her daughter Rama, however, had started harassing and maltreating her. Her daughter Rama had informed about such incidents when she had visited her house. On asking of her daughter, she had provided one fridge and thereafter a TV set and had sent these articles to her daughter's in-laws. Despite fulfilling this demand, husband of her daughter Raju Masih, her mother-in-law Veena and father-in-law Sadiq Masih had continued harassing and maltreating her. On the date of incident, i.e., 1.1.2006 at about 5.30 in the evening, she was informed on telephone by some unknown person that her daughter Rama had been set on fire by pouring kerosene on her by her father-in-law Sadiq Masih, mother-in-law Veena and husband Raju Masih, with common intention of each other. Her daughter Rama was admitted in hospital at Gurdaspur. Hence, complainant Gindo along with her husband Riaz Masih reached the hospital at Gurdaspur, where her son-in- law Raju Masih and his mother Veena were found present near her daughter Rama in the emergency ward. When they were asked about the incident, they could not give any satisfactory reply, and they had brisked away from near the bed of the deceased. She further stated that her deceased daughter Murder Reference No.5 of 2008 3 was harassed and maltreated by her mother-in-law Veena, father-in-law Sadiq Masih and husband Raju Masih, in order to coerce her to bring more dowry articles. On account of the non-fulfillment of their dowry demand and due to annoyance, they tried to kill her daughter Rama by pouring kerosene on her.
It appears from police proceedings that ASI Parsan Singh (PW9) had reached the hospital and taken the statement of this witness on receiving a ruqa bearing No.2348 dated 1.1.2006 from the hospital informing about the admission of Rama wife of Raju Masih. Accordingly, he along with ASI Ajaib Singh, HC Gulzar Singh, HC Gurbachan Singh and Constable Amrik Chand, had reached the Civil Hospital, Gurdaspur, for recording the statement. They had also sought the opinion of doctor regarding the condition of injured Rama, but she had been declared unfit to make a statement. As Gindo, mother of injured Rama, was present near her bed, her statement had been recorded at 10.50 p.m. Gindo, having admitted her statement to be correct, had appended her right thumb impression on that. From her statement, offences under Sections 498-A/34/307 IPC were found to have been made out. ASI Parsan Singh (PW9) had sent the statement through Constable Amrik Chand to Police Station for registration of an FIR, and started the investigation at the spot. Pursuant thereto, FIR No.1/06 under Sections 498-A/307/34 IPC was registered at Police Station Sadar, Gurdaspur. It also appears that the deceased had been admitted by Dr.Manwinder Singh Walia (PW4) in the Civil Hospital, Gurdaspur, at about 8.30 PM. The doctor had given the first aid, and thereafter, had sent a slip to SHO, PS Sadar, on 1.1.2006, vide Ex.PH, at 8.35 PM, and pursuant thereto, ASI Parsan Singh (PW9) had submitted an application (Ex.PG) for Murder Reference No.5 of 2008 4 recording the statement of injured. Vide the endorsement (Ex.PG/1), the doctor (PW4) had found the patient to be unfit at 10.20 PM to give a statement. Thereafter, the statement of Gindo, mother of the injured, had been recorded vide Ex. PJ. Thus, from the aforesaid materials, it is evident that the incident had taken place at 5.30 PM; deceased had been admitted in hospital at 8.30 PM; Dr. Manwinder Singh Walia (PW4) had sent a ruqa at about 8.35 PM, and ASI Parsan Singh (PW9) had submitted the application for recording the statement of inured at 10.20 PM. Further, this also appears from the record that the deceased had been declared unfit to make a statement at 10.20 PM, just half an hour before the statement of mother of the deceased had been recorded. It also appears from the statement of ASI Parsan Singh (PW9) that he had visited the place of occurrence and prepared a rough site plan (Ex.PW9/A) with correct marginal notes. He had also inspected the spot and taken into possession a plastic Can having kerosene oil, one match box, one green blanket with biscuit colour check, and some cloth pieces belonging to the deceased. He had converted these articles into a parcel and sealed them with the seal impression `PS'. Thereafter, he had taken these articles into possession, and then recorded the statement of Riaz Masih vide Ex.PK and of Mangat Masih vide Ex.PL on 1.1.2006. He had deposited the case property with MHC with the seals intact on 2.1.2006. He had again moved an application (Ex.PW9/C) to the Doctor, Civil Hospital, Gurdaspur, to know the condition of deceased Rama. The doctor had declared her unfit vide his endorsement (Ex.PW9/D). Again, third time, on 3.1.2006, the ASI had moved an application (Ex.PW9/E) to the doctor, Civil Hospital, Gurdaspur, and the doctor had declared the patient Rama wife of Raju fit to make a statement. The Investigating Murder Reference No.5 of 2008 5 Officer, ASI Parsan Singh (PW9), had then moved an application in the Court of Shri Nirmal Singh, JMIC, Gurdaspur, vide Ex.PW8/A, to record the statement of the patient. Shri Nirmal Singh, JMIC, had reached the Civil Hospital, Gurdaspur, where he had recorded the statement of deceased Rama. ASI Parsan Singh (PW9) thereafter had moved the application (Ex.PW8/E) for obtaining a copy of the statement recorded by JMIC. He had also recorded the statements of police officials, who had joined investigation with him on different dates. On 6.1.2006, he had received information from the Civil Hospital, Gurdaspur, in writing (Ex.PW9/F), about deceased Rama having delivered a still-born female child. He had then reached the Civil Hospital, Gurdaspur, and prepared an inquest report (Ex.PW9/F) regarding the new still-born baby, in presence of Gindo, mother of deceased, and Riaz Masih, her husband. Thereafter, he had moved an application (Ex.PW9/G) for conducting the postmortem of dead body of the still-born baby. Dead body had been handed over to Constable Kewal Kumar and PHC Gurdip Singh for this purpose. Deceased Rama had also made a statement to him on 6.1.2006, which he had correctly recorded vide Ex.PW9/H. She had put her thumb mark on the statement. He had received the information on 27.1.2006, in Police Station, Sadar, Gurdaspur, vide Ex.PW9/J, regarding the death of Rama in the Civil Hospital, Gurdaspur. Proceedings regarding the death of Rama had been conducted by some other police officer, namely, ASI Ajaib Singh. ASI Parsan Singh (PW9) had also recorded the statements of Raju Masih, Sadiq Masih and Veena on 3.1.2006. Accused Rinku had been arrested on 20.1.2006. It appears that ASI Ajaib Singh, who was not produced in Court, had taken steps for the postmortem examination of dead body and the inquest proceedings (Ex.PC). Murder Reference No.5 of 2008 6 ASI Ajaib Singh had also recorded the statements of Gindo and her husband Riaz Masih on 27.1.2008 regarding the identification of dead body of the deceased. After completion of investigation, a challan was prepared and presented by ASI Rajan Parminder Singh, SHO, Police Station Sadar, Gurdaspur. ASI Parsan Singh (PW9) had identified the signatures of ASI Rajan Parminder Singh. On a scrutiny of documents, a prima facie case under Section 302 IPC and alternatively under Section 304-B IPC and Section 316 IPC was made out against the accused persons, and the charges were framed against all the four accused persons accordingly. The accused persons pleaded not guilty and claimed trial.
Learned trial Judge, on appreciation of evidence, recorded the conviction and sentence, as aforesaid, while placing reliance on the dying declaration which was found duly corroborated by the evidence of Gindo (PW5); recovery of articles used in the commission of offence; dearth of explanation on the part of accused persons regarding the unnatural death of deceased inside her matrimonial house; statement of the deceased regarding the death of her still born child, and the medical evidence.
Learned counsel for the accused-appellants submitted that in the FIR, Rinku, brother in-law of deceased has not been attributed any role. His name also does not find mention in the statement of Mangat Masih (PW7), and for the first time, his name was introduced in the dying declaration of the deceased. If at all there was any allegation of demand of dowry, it was attributable only to the husband of deceased, whereas, the elder brother-in-law of deceased had no role to play nor had he any motive to participate in the commission of offence. However, in the dying declaration, all the family members of the accused side have been falsely Murder Reference No.5 of 2008 7 implicated. This is also a submission of learned counsel that as per the first statement of Gindo (PW5), some unknown person had telephoned her husband Riaz Masih (PW6), and informed about the incident which Riaz Masih (PW6), father of the deceased, has not supported. This is also a submission of learned counsel that as per the testimony of Dr. Raj Masih (PW1), the cause of death was septicemic shock due to burn injuries which was sufficient to cause death in the ordinary course of nature. According to learned counsel, if the burn injury was deep, then deceased would not have been conscious to make statement. Dr.Ajay Mahajan (PW3) had declared the deceased fit to make a dying declaration, but she was not under his treatment, and he was only a doctor on emergency duty. Learned counsel also submitted that the deceased had remained admitted in the hospital for 27 days. He has placed reliance on a judgment of Hon'ble the Apex Court reported in 2004 (3) RCR (Crl.) 569 (State of Karnataka versus Sri Balu Rama Kalligaddi), to submit that in such cases, the Court should not place reliance only on the certificate of a Doctor, but is to find out from the supporting medical record whether the victim was in a fit state of mind. He has also placed reliance on another judgment of Hon'ble the Apex Court, reported in 2004 (1) RCR (Criminal) 228 (Kamalakar Nadram Bhavsar and others versus State of Maharashtra), to get support to his submission that the certificate issued by a doctor other than the doctor who had treated the deceased, for recording dying declaration, was not a genuine document. This is also a submission of learned counsel that the medical record and the treating doctor were also not produced in the witness box. Arguing on the mitigating circumstances against the death sentence awarded to accused Raju Masih, learned counsel for accused-appellant submitted that he is a Murder Reference No.5 of 2008 8 young man of 24 years with no past criminal record, and there is a chance of reformation. There was no motive for him to commit the offence nor is it a case of cold blooded murder. Dying declaration also indicates that there was a quarrel between husband and wife. Besides, this is not a case of gruesome or barbaric murder with pre-medication and that the parents of deceased have also turned hostile.
On the other hand, learned State counsel submitted that witness Gindo (PW5) was cross-examined after 6 months, therefore, the defence had enough time to win over and, hence, she turned hostile. This is also a submission of learned State counsel that the dying declaration of deceased was recorded by JMIC, and the deceased was put to death in furtherance of the demand of dowry. In this background, she tried to justify the impugned judgment.
In order to prove its case, the prosecution examined Dr.Raj Masih (PW1), who conducted the postmortem examination on the dead body of Rama; Dr.Vijay Kumar (PW2), who conducted the postmortem examination on the dead body of still born child; Dr.Ajay Mahajan (PW3), who declared injured Smt. Rama fit to make a statement; Dr. Manwinder Singh Walia (PW4), who admitted the injured in hospital on 1.1.2006 and declared her unfit to make a statement; Smt. Gindo (PW5), mother of the deceased; Riaz Masih (PW6), father of the deceased; Mangat Masih (PW7), maternal uncle of the deceased; Shri Nirmal Singh (PW8), JMIC, Gurdaspur, who recorded the dying declaration of deceased, and ASI Parsan Singh (PW9), who being the Investigating Officer, conducted the investigation of this case.
Murder Reference No.5 of 2008 9
From a careful scrutiny of the testimonies of aforesaid witnesses, it appears that the prosecution case is essentially based on the dying declaration; statement of Shri Nirmal Singh, JMIC (PW8), and of the doctors. Though mother of the deceased Smt.Gindo is the author of FIR, but it appears from the testimonies that both Gindo and Riaz Masih, parents of the deceased, have resiled from their statements given before police. Accordingly, we would proceed to closely examine the dying declaration; testimony of Shri Nirmal Singh (PW8) and medical evidence. It appears from the dying declaration (Ex.PW8/C) that deceased Rama made a statement at 12.30 PM on 3.1.2006. Deceased Rama narrated that she had told her husband Raju that she wanted to go to Gurdaspur. Her husband told her that everything which belonged to her was in her matrimonial house, and she was not required to go to Gurdaspur. However, she told her husband that both of them would go in the evening. Her husband, Raju, came to the house in the evening and reiterated his demand for a motorcycle, which he had started raising soon after his marriage. As the accused husband had started quarreling with the deceased, she had told that they would go tomorrow. In the meantime, her mother-in-law Veena and brother-in-law (Jeth) Rinku had also come to the spot. Her mother-in-law Veena and brother-in-law Rinku caught hold of her, whereas her husband Raju Masih threw a Can of kerosene on her. Thereafter, she was set on fire by burning a match stick. Afterwards all of them had gone out, and the deceased had come running to the courtyard. Her neighbourers had thrown water on her from the roof. Thereafter, her mother-in-law, and her husband had come inside while pretending to cry, and had started saying that their daughter-in-law has been burnt. They had advised her to say that she has Murder Reference No.5 of 2008 10 suffered injury due to the bursting of a stove, and thus should save them. However, they had not got her admitted in hospital for about two hours. When the neighbourers of deceased had arranged a vehicle and they were about to proceed to hospital, then her mother-in-law, her husband and brother-in-law Rinku had sat in that vehicle and started persuading the deceased that she should only tell that a stove had bursted. When she had been put in vehicle, her father-in-law had reached, and he had also started persuading the deceased, while addressing her as `daughter', that she should only tell that she was engulfed by fire due to the bursting of a stove. Deceased Rama also gave a statement to ASI Parsan Singh under Section 175 Cr.P.C. on 6.1.2006, and informed him that she had already given a statement before Shri Nirmal Singh, JMIC, on 3.1.2006. Moreover, on the date of statement before police officer, she had given birth to a dead female child at about 4.30 in the early morning. She was confident that the reason behind the death of her child was burns which she had received on being poured kerosene oil with an intention to kill her by her father-in-law, mother-in-law, husband Raju Masih and brother-in-law Rinku.
Now coming to the statement of Shri Nirmal Singh, JMIC, Gurdaspur (PW8), on 3.1.2006, ASI Parsan Singh (PW9) had submitted an application (Ex.PW8/A) for recording the statement of Rama when she had been admitted in injured condition in Civil Hospital, Gurdaspur. Hence, he had reached the Civil Hospital, Gurdaspur. ASI Parsan Singh (PW9) had also moved an application (Ex.PW8/B) to know as to whether the injured was fit enough to make a statement. The doctor attending on her, had declared her fit to do so, vide Ex.PW8/B.1. The Magistrate had put some preliminary questions to the injured before recording the statement, and Murder Reference No.5 of 2008 11 from her answers to the questions, he had concluded that she was fit enough to make a statement. He had recorded her statement (Ex.PW8/C), and the injured having admitted it to be correct, had put her left thumb impression at the end. As her right thumb had been badly burnt, therefore, she had used her left hand thumb, which JMIC (PW8) has also noticed vide Ex.PW8/C.2. Doctor had also made his endorsement (Ex.PF) to the effect that the injured was fit to make a statement. Besides, during the recording of the statement by JMIC, the injured had remained fit throughout to make the statement. After recording the statement, JMIC had also passed a zimini order (Ex.PW8/D). Thereafter, ASI Parsan Singh had made a written request (Ex.PW8/E) for obtaining a photocopy of that statement, which had been supplied to him. JMIC has also stated in his cross-examination that the hands of deceased were burnt and he has mentioned this fact below the thumb impression of deceased. He has also admitted that Ex.PW8/C.1 was the half thumb impression and not the full one. He has clarified that as the half of thumb had been burnt, therefore, only the thumb impression of the remaining half had been taken. He had reached the hospital within 5 to 7 minutes after receiving the application. In his reply to a defence suggestion as to whether the patient had been given any sedative, the JMIC replied that he had fully ensured from the certificate given by the doctor as also the presence of doctor throughout, during the recording of statement, that the injured had remained fit to make a statement. He has further stated that some other patients were also sitting near injured Rama, when ASI Parsan Singh (PW9) had pointed out towards her. However, ASI Parsan Singh had not helped her in any manner to get up from the bed. She was only helped by the hospital attendant to get up. JMIC (PW8) has also stated that he had Murder Reference No.5 of 2008 12 not read the FIR before recording the statement of injured.
As regards the testimony of Dr.Ajay Mahajan (PW3), he has stated that he was working as a Medical Officer in the Civil Hospital, Gurdaspur, on 3.1.2006. On that date, an application (Ex.PE) had been moved by ASI Parsan Singh (PW9) for obtaining his opinion as regards the health condition of injured Rama. This witness had declared her fit to make a statement vide endorsement (Ex.PE/1) at 11.45 AM. Shri Nirmal Singh, JMIC, Gurdaspur (PW8), had come to hospital for recording the statement. Dr.Mahajan had remained present throughout near the injured, when her statement had been recorded by the JMIC.
Dr.Raj Masih (PW1), had conducted the postmortem on the dead body of deceased Rama, and had noticed that rigor mortis were present on the dead body with superficial to deep burns on whole of the body except dorsum of 1/3rd of left forearm and dorsum of both feet. Dirty granule tissue was present at many places. Puss pockets were also present at few places. Brain membrance, thorax part and abdominal parts were congested, and Balder was empty. Gravid uterus was 18 cm x 9 cm in size. A small dark black clot was present in the uterus. In his opinion, the cause of death was septicemic shock due to burn injuries which was sufficient to cause death in the ordinary course of nature. The probable time, that had elapsed between the injuries and the death, was about 27 days, and between the death and the postmortem, 24 hours. He proved the carbon copy of the postmortem report as Ex.PA. In his cross-examination, he has mentioned as:
"A person suffering superficial injuries may remain conscious while a person suffering deep burn injuries may not remain conscious. I have not mentioned the depth of the burn injuries."Murder Reference No.5 of 2008 13
Dr.Vijay Kumar (PW2), Medical Officer in the Civil Hospital, had conducted the postmortem examination of the still-born child on 6.1.2006. Length of the body was 13 inches with weight 1 Kg. 250 grams. Rigor mortis were not present. Body of the child was macerated, flaccid and the skin was softened. In his cross-examination, the doctor has stated that he mentioned the cause of death on the basis of findings that various organs of the child were softened. According to him, the cause of death was the burns of mother.
Now coming to the testimony of Gindo (PW5), mother of the deceased, she has reiterated her statement given to police, pursuant to which, the FIR had been recorded. Therefore, it need not be repeated here. Moreover, she has stated that she along with her husband Riaz Masih had gone to Civil Hospital, Gurdaspur, in emergency ward, on having received the information about the incident of burning of their daughter Rama, where accused Sadiq Masih and Veena had been found present. On seeing them, the accused persons had slipped away. According to this witness, the deceased was given medical treatment only after they had reached the Civil Hospital, Gurdaspur. At that time, police was already present in the hospital. This witness had given her statement (Ex.PJ) to police. The statement, having been read over to her and having been found to be correct, was signed by her. Her daughter had died on 27.1.2006 in Civil Hospital, Gurdaspur, due to burn injuries. Further, according to this witness, when her injured daughter had been brought to Civil Hospital, Gurdaspur, her condition was initially stable, but later on, deteriorated. At the time of her death, she was carrying a six months' old pregnancy. After about seven days of admission in the hospital, the deceased had given the birth of a dead Murder Reference No.5 of 2008 14 female child. Police had also conducted the proceedings regarding the dead born child. This witness had also made a separate statement to police regarding the birth of a dead child. Inquest report relating to the dead body of her daughter Rama had been conducted in her presence and her statement to that effect had also been recorded. According to this witness, just after two months of the marriage of her daughter, a dispute had started between the parties. Accused persons had demanded a TV and a Fridge, which had been supplied by her. These articles had been purchased from Gurdaspur and delivered in the house of accused. She has also pointed out that these articles were purchased from Sangalpura Road from the shop of Rinku for a sum of Rs.9,000/- each. In her cross-examinations, however, she has taken a complete `U' turn, when she has stated that her daughter Rama was happy in the house of her in-laws. There was no dispute between her daughter and daughter's in-laws. She has also stated that she had made a statement on 23.11.2006 in the Court, only under the pressure of police. Besides, police had also obtained her signatures on some blank papers. Her daughter had received burn injuries while preparing meals in the kitchen, due to burst of a stove. She had already told this fact to police. Both the hands of her daughter were completely burnt, and she was not in a position to put her thumb mark, or sign any document, nor was she in a position to make a statement. She had remained present in the hospital with her daughter till she was alive. During her presence, statement of her daughter had not been recorded by police. She has also completely denied the factum of demand of dowry articles and harassment. She has also denied that she had received a telephonic call from some unknown person that her daughter had been set on fire by her daughter's in-laws after sprinkling kerosene oil, with common Murder Reference No.5 of 2008 15 intention, and her daughter was lying admitted in Civil Hospital, Gurdaspur. She has also denied the involvement of accused persons in the incident.
This is pertinent to mention here that the examination in-chief of complainant Gindo (PW5) was recorded in the Court on 23.11.2006, and her cross-examination was deferred on the request of defence counsel. She had again appeared before the trial Court for further cross examination on 23.3.2007, when she denied the prosecution case in toto. However, she was allowed to be cross-examined having been declared hostile, on the request of learned APP, but in the cross-examinations by the prosecution, she has not supported the prosecution case while deposing that she had given the statement on 23.11.2006 in the Court under the pressure of police. She has also deposed that her signatures had been obtained by police on some blank papers.
So far as the evidence of Riaz Masih (PW6), father of the deceased, is concerned, in his examination-in-chief, he has stated that the accused persons had not demanded any dowry articles after the marriage of his daughter. His daughter was happy in her matrimonial home, and there was no complaint of any sort. He was also declared hostile, but he gave the reply absolutely in line with that of his wife Gindo (PW5) during cross- examination by Additional Public Prosecutor. Mangat Masih (PW7), maternal uncle of the deceased, has also resiled from his police statement and has toed the line of the parents of deceased.
Thus, this Court is only left with the testimony of Gindo (PW5), mother of the deceased, who though declared hostile, has supported the prosecution case to a large extent in her cross examination by the defence, and the medical evidence, and the dying declaration made by the Murder Reference No.5 of 2008 16 deceased in the presence of doctor, which had been recorded by a Judicial Magistrate 1st Class (PW8). It is a settled principle of law that a conviction can be based on the dying declaration, if the Court is satisfied that the dying declaration in question is truthful, and not vitiated in any manner. It is not necessary that a dying declaration should be corroborated by other evidence if it is properly recorded. There is no such rule of prudence which has hardened into a rule of law, to hold that a dying declaration cannot be acted upon unless it is corroborated. It is only when the circumstances surrounding the dying declaration are not clear or convincing, that the Court may, for its assurance, need to look for a corroboration to the statement. It is presumed that a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person, yet the Court has to be on guard against the statement of the deceased if resulted from any tutoring, prompting or it seems to be a product of the figment of imagination. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants, and that he was making his statement without any influence or rancour.
The law on this subject was expressly enunciated in a judgment of Hon'ble the Apex Court reported in AIR 1958 S.C. 22 (Khushal Rao versus State of Bombay), relevant portion of which, on reproduction, reads as:
"...(1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;Murder Reference No.5 of 2008 17
(2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;
(3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence;
(4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and (6) that in order to test the reliability of dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night, whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control, that the statement has been Murder Reference No.5 of 2008 18 consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination...."
In the light of above principles, now we would proceed to examine the veracity of dying declaration made by the deceased, at the earliest possible time when the doctor had declared the victim fit to make a statement. Translation of the dying declaration (Ex.PW8/C) made by deceased Rama, and recorded by Nirmal Singh (PW8) JMIC, on reproduction, reads as:
"Statement of Rama d/o Raj Masih, w/o Raju, 20 years, resident of Hayat Nagar.
Statement is being recorded in the presence of Dr.Ajay Mahajan, MS, CH.Gurdaspur.
Q. How many months had passed to your marriage? Ans. Sir, Eight months.
Q. Upto what standard you have studies?
Ans.Sir, I have studied upto 5th class.
Q. What is the name of your parental village? Ans. Sir, Gurdaspur.Murder Reference No.5 of 2008 19
Q. How many brothers and sisters you are? Ans. Sir, we are six sisters and one brother. Q. What is your father?
Ans. He is serving at Pathankot.
At this stage, I have found that the deponent is fit to make the statement, so, I proceed to record the statement at 12.30 p.m. It was dated 1.1.2006, I asked my husband Raju that she wants to go to Gurdaspur. He told that she is not to go because everything is of yourself is here. I said that we shall go in the evening. Then he came to the house in evening and stated quarreling with me. Earlier also, he used to demand motorcycle from us. He started to demand the motorcycle soon after the marriage. When he started quarreling with me then I said that they shall go tomorrow. In the meantime, my mother in-law Veena, my brother in-law (Jeth) Rinku came at the spot. Mother in-law and my brother in-law Rinku caught hold me. My husband thrown the canny of kerosene on me. Then after setting on fire with a match stick all of them went outside. They have set me on fire in a room. Then they went outside. Then I by running came to the courtyard. The neighbourers put water on me from the roof (kotha). Then all i.e., my mother in-law and my husband came while weeping and started saying that their daughter in- law has burnt. Then they said to me that I will say that Murder Reference No.5 of 2008 20 stove has brusted and save us. They have not go admitted me in the hospital for two hours. When the neighbourers by arranging a vehicle were starting to proceed to the hospital, then my mother in-law, my husband and my brother in-law Rinku also sat in the vehicle and then they start saying that I shall told that the stove has bursted. When I was put in the vehicle, my father in-law also came and he also start saying that "daughter" you shall say that the fire has engulfed me due to bursting of stove. Except this, I have nothing to say...."
This is an admitted case of the prosecution that deceased Rama had given birth to a still born female child in the hospital on 6.1.2006, and her statement was also recorded by ASI Parsan Singh (PW9), under Section 175 Cr.P.C. The statement on reproduction, reads as:
"Statement of Rama wife of Raju Masih, daughter of Riaz Masih, Issai, resident of Hayat Nagar, age about 20 years, u/s 175 Cr.P.C.
I am resident of the above given address. On 25th April, 2005, my marriage was solemnized with Raju Masih son of Sadiq Masih, Issai, resident of Hayat Nagar and in my womb, a child of about 6/6 ½ months of aforesaid Raju was growing up. I have already recorded my statement before Sh.Nirmal Singh, Judge Sahib. Today, at about 4.30 early in the morning, one dead female child has born to me. I am confident that Murder Reference No.5 of 2008 21 the reason behind the death of child is due to burning me by pouring kerosene with an intention to kill me by my father in-law Sadiq Masih, mother in-law Veena, husband Raju and brother in-law Rinku. Statement is heard which is correct...."
From the aforesaid facts, it is evident that the dying declaration of deceased was recorded by a competent Magistrate, in the presence of a doctor, which is duly corroborated by the medical evidence, and thus, inspires confidence of the Court being coherent and consistent on all the material points. The testimony of JMIC (PW8) and the doctor (PW3) support the attending circumstances whereunder the dying declaration was recorded. The statement given to ASI Parsan Singh (PW9), so also his testimony lend further credibility to the dying declaration. That apart, as noticed herein above, Gindo (PW5) has supported the prosecution case till her further cross-examination was deferred on the request of the defence counsel. Though, name of accused Rinku, brother-in-law of the deceased, does not find mentioned in FIR, but the same has been mentioned in the dying declaration recorded by Sh.Nirmal Singh, JMIC (PW8). The dying declaration clearly suggests the facts like demand of dowry and specific roles played by all the accused appellants. Even though witness Riaz Masih (PW6), father of the deceased, turned hostile and Gindo (PW5), mother of the deceased resiled after her further cross-examination was deferred, but she has supported the prosecution case in material particulars till that stage, as discussed herein above. Besides, Dr.Raj Masih (PW1), in his cross- examination, has clarified that if the injuries are superficial, a patient can remain conscious. In this background, if on 6th day i.e., 6.1.2006, the patient Murder Reference No.5 of 2008 22 became conscious and gave the statement, there is no reason to doubt the certificate given by Dr.Ajay Mahajan (PW3). All the circumstances attending on the recording of dying declaration also do not suggest any abnormality so as to doubt the credibility of certificate issued by the doctor who remained present throughout the recording of dying declaration. Thus, we are of the considered view that the judgment of conviction in respect of the accused appellants requires no interference in appeal. Accordingly, the same is hereby affirmed.
Now, coming to the sentence part of the impugned judgment, accused Raju Masih has been awarded the extreme penalty of death sentence, whereas, two others, namely Veena and Rinku, have been visited with the sentence of the life imprisonment. Hon'ble the Apex Court, in various judgments, has laid down the guidelines to be followed in awarding the extreme penalty of death sentence. In one of its leading judgment on the point, namely (1983) 3 SCC 470 (Machhi Singh and others versus State of Punjab), wherein an earlier leading judgment, namely, (1980) 2 SCC 684 (Bachan Singh versus State of Punjab), has been discussed, these guidelines have been summarized as:
"I. Manner of commission of murder:
When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,
(i) when the house of the victim is set aflame with the end in view to roast him alive in the house.
(ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.
Murder Reference No.5 of 2008 23
(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.
II. Motive for commission of murder:
When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward
(b) a cold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland.
III. Anti-social or socially abhorrent nature of the crime:
(a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance, when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.
(b) In cases of bride burning and what are known as dowry deaths or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
Murder Reference No.5 of 2008 24
IV. Magnitude of crime:
When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
V. Personality of victim of murder:
When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons." In this background, Hon'ble the Apex Court culled out the guidelines from the discussions in the Constitution Bench judgment in Bachan Singh's case (supra), which are to be followed in the cases of awarding death sentence. The said guidelines are as:
"(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the `offender' are require to be taken into consideration alongwith the circumstances of `crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life Murder Reference No.5 of 2008 25 imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."
In the instant case, this is undisputed that the deceased remained hospitalized for 27 days before her death, having suffered superficial to deep burn injuries, and on 6.1.2006, after 6 days of her admission in the Civil Hospital, she had given a dying declaration before the Judicial Magistrate, 1st Class, as also a statement to ASI Parsan Singh (PW9). Thus, this is not a case of gruesome or barbaric murder. This is also not a case of cold blooded murder, and even Riaz Masih (PW6), father of the deceased, and Mangat Masih (PW7), maternal uncle of the deceased had turned hostile, whereas, her mother Gindo (PW5) resiled after her further cross-examination was deferred. It also appears that the incident took place as a result of quarrel between husband and wife, and we do not find any thing to say that the offence was committed with pre-meditation or pre- planning. Besides, accused Raju Masih is said to be a young man of 24 years with no past criminal record.
Murder Reference No.5 of 2008 26
In view of these mitigating circumstances, this case would not fall in the category of the rarest of the rare cases. Hence, the extreme penalty of death sentence awarded to accused Raju Masih is converted into the sentence of imprisonment for life with a fine of Rs.7000/-, with a direction that in default of payment of fine, he shall undergo further RI for 3 months.
With the aforesaid modification on the quantum of sentence in respect of accused Raju Masih, the sentence awarded by learned trial Judge to accused-appellants on both counts, are hereby affirmed. Resultantly, this Murder Reference No.5 of 2008 is declined, and Criminal Appeal No.505- DB of 2008, is dismissed.
( UMA NATH SINGH )
JUDGE
18.05.2009 ( DAYA CHAUDHARY )
pk JUDGE
Whether this judgment be referred to Reporter: YES/NO