Punjab-Haryana High Court
Surjit Singh vs State Of Haryana on 29 April, 2023
Author: Harinder Singh Sidhu
Bench: Harinder Singh Sidhu, Lalit Batra
Neutral Citation No:=2023:PHHC:070198-DB
Neutral Citation No. : 2023:PHHC:070198-DB
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-515-DB-2003 (O&M)
Date of Decision: April 29, 2023
Surjit Singh ...Appellant
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE HARINDER SINGH SIDHU
HON'BLE MR. JUSTICE LALIT BATRA
Present: Mr. Arun Kumar Bakshi, Advocate (Legal Aid Counsel)
for the appellant.
Mr. Anmol Malik, DAG Haryana.
***
HARINDER SINGH SIDHU, J.
This appeal has been preferred against the judgment and order dated 21/23.12.2002 passed by the Session Judge, Karnal in Sessions Case No.17 of 2002 whereby the appellant, who was charged with and tried for offence punishable under Section 302 IPC has been convicted for the same and sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/- and in default to further undergo rigorous imprisonment for a period of one year.
2. The case of the prosecution in a nutshell is that on 3.1.2002, ASI Jagan Nath (PW14) while posted as Incharge Police Post Nilokheri received a rukka Ex.PA/1 from Dr. Ravinder Kaur, CHC Nilokheri regarding admission of Manpreet Kaur with 80 percent burns. On receipt of the rukka ASI Jagan Nath accompanied by other police officials went to CHC, Nilokheri at about 9.30 pm and moved an application Ex.PB before Dr. Ravinder Kaur to ascertain whether Manpreet Kaur was fit to make a statement. Dr. Ravinder Kaur gave her opinion Ex.PB/1 to the effect that the patient was fit to make a statement. ASI Jagan Nath 1 of 29 ::: Downloaded on - 12-06-2023 09:15:58 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -2- Neutral Citation No. : 2023:PHHC:070198-DB recorded the statement of Manpreet Kaur (Ex.PC). She stated that she was married with accused Surjit Singh about 8 years back. 4 children were born to them. Her husband Surjit Singh (appellant) used to drink and take intoxicating pills. Whenever she demanded money for household expenses he used to beat her. On 1.1.2002 at about 8.30 am, she was easing herself in the latrine. The latrine did not have a door. Only a piece of cloth was serving the purpose of the door. While she was sitting inside the latrine, her husband poured diesel on her and set her on fire by using a match stick. She at once got up and came into the courtyard of the house. She raised alarm. Members of the family took her inside the room and covered her with a blanket and extinguished the fire. They threatened her that she should tell everybody that she had got burnt on account of electric current. The accused- Surjit Singh then telephoned her sister and brother-in-law at Delhi informing them that she (Manpreet Kaur) had caught fire. On receiving the information, her sister and brother-in-law came from Delhi to enquire about her condition. She then narrated the entire occurrence to them. Her sister and brother-in-law took her to Civil Hospital, Nilokheri. Before that her husband was getting her treated from a private doctor.
3. After recording the statement ASI Jagan Nath read over its contents to her and she affixed her right thumb impression. Dr. Ravinder Kaur remained present throughout the period when her statement was recorded by ASI Jagan Nath. Dr. Ravinder Kaur also attested the statement at point Ex.PC/1. Manpreet Kaur remained conscious and mentally alert throughout the period her statement was being recorded. ASI Jagan Nath then made his endorsement (Ex.PC/3) on the statement 2 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -3- Neutral Citation No. : 2023:PHHC:070198-DB and sent it to Police Station Butana and formal FIR (Ex.PC/2) was registered. The investigation of case was taken up by ASI Jagan Nath who recorded the statements of Meena (sister) and Kuldeep Singh (brother-in-law ) of Manpreet Kaur who were present at CHC Nilokheri.
4. From CHC Nilokheri Manpreet Kaur was taken to Safdarjung Hospital, New Delhi on 4.1.2002. On receiving opinion of the doctor regarding her fitness, her statement (Ex. PQ/2) was recorded on 4.1.2002. In this statement she reiterated the sequence of events as in her previous statement. She died on 28.1.2002 while under treatment at Safdarjung Hospital. Her postmortem examination was conducted. Offence was converted to Section 302 IPC. After completion of investigation challan was presented.
5. The prosecution examined number of witnesses in its support. The statement of the accused under Section 313 Cr.P.C. was recorded wherein he stated that he is innocent and has been falsely implicated in the case. Infact on 1.1.2002 his wife Manpreet Kaur caught fire from a lamp made of a bottle while putting kerosene in the bottle with a thread inside through a cord and the information was given to him by Piara Singh, his brother and he got her treated from Dr. Ajay of Nilokheri. On 3.1.2002 when Manpreet Kaur became unconscious she was taken to CHC Nilokheri by her sister Meena Devi and brother- in- law Kuldeep Singh and he was detained by police from the CHC Nilokheri. The lady Medical Officer of CHC Nilokheri got planted this false case because he had filed a civil suit against the said lady Medical Officer. However, he did not lead any evidence in his defence.
6. The appellant was convicted and sentenced as referred to 3 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -4- Neutral Citation No. : 2023:PHHC:070198-DB above. Hence, this appeal.
7. We have heard learned counsel for the parties and have gone through the judgment and record.
8. PW1 Dr. Ravinder Kaur stated that on 3.1.2002, she was posted as Medical Officer in CHC Nilokheri. On that day, the patient Manpreet Kaur wife of Surjit Singh, aged about 26 years was brought by her sister Meena Devi and brother at 9.00 pm. The patient was conscious and well oriented. She found the following :
"There were superficial burns on chin, neck, chest, abdomen, both legs and both arm. Bullae formation was present. Surgeon's opinion was advised."
9. The patient was kept under observation. Burns were caused within 72 hours by heat. She was having burn injuries upto 80 percent.
10. PW 1 proved the MLR Ex.PA. She then sent rukka Ex.PA/1 to Incharge, Police Post Nilokheri, Police Station Butana. On the same day i.e. 3.1.2002, ASI Jagan Nath, Incharge, Police Post, Nilokheri came to CHC Nilokheri and moved application Ex.PB to know whether the injured was fit to make statement. She gave her opinion Ex.PB/1 to the effect that the patient was fit to make a statement. This opinion was given by her at 9.55 pm.. She had given the opinion after examining Manpreet Kaur. The same day, ASI Jagan Nath recorded the statement of patient Ex.PC in her presence at CHC Nilokheri. During the period of recording statement the patient remained mentally alert, conscious and fit to make a statement. She had also attested the statement Ex.PC at point Ex.PC/1. The same night, the patient was referred to General Hospital, Karnal for further treatment and reference slip was given to attendant of patient.
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11. In cross examination by counsel for accused she stated that no previous record of treatment of Manpreet Kaur was produced before her when she was brought to CHC, Nilokheri. However on her asking the patient had informed her that she had not taken treatment from any other doctor previously. But this fact was not mentioned in the MLR. She denied the suggestion that Manpreet Kaur (since deceased) had instituted a civil suit for damages against her on account of failure of operation of sterilization. She denied that she was the motivator for the deceased for undergoing the sterilization. She volunteered that the civil suit had been filed by Manpreet Kaur against the Surgeon Dr. (Mrs.) Krishna Chaudhary who had performed the operation. She denied that she had got any compromise effected between the accused, the deceased and Dr. Krishna Chaudhary for Rs. 50,000/- which eventually failed as accused did not agree. She denied the suggestion that the deceased was unconscious and unable to make any statement and that she had given a wrong opinion regarding her fitness.
12. PW2 Dr. Arvind Thergaonkar Chief Medical Officer, Department of Forensic Medicines, Safdarjung Hospital, New Delhi stated that on 29.1.2002, he conducted post mortem examination on the dead body of Manpreet wife of Surjit. She was brought to Safdarjung Hospital on 4.1.2002 at 6.45 am with alleged history of homicidal burns as her husband poured diesel on her body and set her on fire. She expired in Safdarjung Hospital on 28.1.2002 at 6.25 pm. He observed as under :-
Rigor mortis was present all over the body. Post mortem stainings were present on the back. Eyes were closed and normal. State of superficial natural orifices like ear, nose 5 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -6- Neutral Citation No. : 2023:PHHC:070198-DB and mouth were normal.
External examination There were burn injuries which were as follows :
1. Cut down wound was seen on right leg.
2. Dermo- epidermal burns superficial to deep were present all over the body except face and scalp, left arm, right upper arm, right half of the forearm, legs and feet and patches on thigh, about 60 per cent of the burns were found on body.
The burns were infected in nature. The infection was markedly seen on trunk both the sides. The area of blackening, skin was seen on chest. Hair were burnt and signed on pubic region. No mark of violence was seen on the body. Patchy healing was seen on abdomen.
Internal Examination Scalp, Skull and Brain No effusion of blood was seen in scalp, skull vault and base were normal. Brain was congested.
Neck and thorax Trachea/neck structures, chest wall all were normal. Lungs showed congestion and patchy consolidation changes. Heart was normal.
Abdomen and pelvis Stomach was empty, liver/spleen/kidneys, all were congested. Bladder and pelvis were normal. Uterus was empty.
13. In his opinion, the cause of death was septicemia following about 60 percent ante- mortem infected flame burns. The time since death was about 23 hours. In cross examination he stated that the burn injuries were superficial in nature but it was difficult to describe as to which particular injury was superficial and which was deep. It was a case of first and second degree burns. He stated that infection in a case of burn could cause septicemia if the patient is not treated properly. Voluntarily stated that in a case of burn the possibility of septicemia is very high because of molecular death of tissue due to burns. He further stated that in Safdarjung Hospital there was a specialized burn unit along with intensive care unit of burn and appropriate treatment is given to the needy patient. The patient did not remain under his treatment at the Hospital. He could not tell in which ward the patient remained under 6 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -7- Neutral Citation No. : 2023:PHHC:070198-DB treatment. Septicemia usually develops after 48 to 72 hours. It is curable. Since the patient did not remain under his treatment he could not say as to when she developed septicemia.
14. PW3 Dr. Manish Zade deposed that on 4.1.2002, he was posted as Senior Resident in Burns and Plastic Surgery Department, Safdarjung Hospital, New Delhi. On that day, Manpreet Kaur was brought in the casualty in Safdarjung Hospital by Meenu, her sister at 6.45 am. The police was informed about the admission of medico- legal case in casualty. The patient had given history of alleged homicidal burns by her husband on 1.1.2002 by pouring diesel on her at about 8.00 am and setting her on fire with a match stick. She further told that she was taken to hospital at Nilokheri and subsequently was referred and brought to Safdarjung Hospital.
On examination of patient, he found as follows :
The general condition was critical, afebrile (she was not having any fever). Pulse rate was 88. Her respiration was quiet. Abdomen was soft. Evidence of predominantly deep dermal burns over face, chest, abdomen both upper and lower limbs, amounting to approximately 60 percent total body surface area thermal burns. The injuries were 60 percent thermal burns and were found to be dangerous in nature.
15. In cross examination by counsel for the accused he stated that he could not tell as to what treatment was given to her as he did not have the prescription slip of the patient with him. He stated that he had not mentioned about the superficial injuries in the MLR as most of the injuries were deep burn injuries which were dominant in this case. He did not ask the police to arrange for a dying declaration of the patient from the Magistrate. He denied the suggestion that septicemia develops because of delay in treatment. Voluntarily stated that it develops due to
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16. PW4 Dr. Nawab Iqbal Akhtar, stated that on 28.1.2002, he was posted as Junior Resident, Department of Burns and Plastic Surgery, Safdarjung Hospital, New Delhi. On that day, he prepared death summary of Manpreet Kaur. The history was taken from the treatment chart and admission card. She was admitted on 4.1.2002 in Safdarjung Hospital, New Delhi and expired on 28.1.2002 at 6.25 pm. The deceased was having 60 percent burn injuries. The time of burns was recorded to be 8.00 am on 1.1.2002. The time of arrival in Safdarjung Hospital, New Delhi was recorded to be 6.45 am on 4.1.2002 and she was brought by her sister Smt. Meenu. The history given by Manpreet Kaur on her own was that her husband poured diesel on her and set her on fire in the toilet. On examination the condition of the patient was poor, conscious, dehydrated (acute).
17. In cross examination he stated that the reason of death is mentioned in the death certificate. She was in septicemia condition. Therefore she developed cardiac arrest due to septicemia and died.
18. PW5 HC Shish Pal Singh, Police Post Nilokheri stated that on 25.1.2002 he was posted as MHC in Police Station Butana. He tendered in evidence his affidavit Ex.PH deposing regarding deposit of the sealed parcels containing burnt clothes of the deceased and half bottle containing diesel in the malkhana and then handing them over to Constable Mohinder Singh for depositing with the FSL Madhuban.
19. PW6 Constable Mohinder Singh, Police Post Nilokheri deposited the sealed parcels at FSL Madhuban on 25.1.2002.
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20. PW7 Baljinder Singh stated that on 14.3.2002 he was posted as SI/SHO, Police Station Butana. On 15.3.2002 after completion of investigation, he prepared final report under Section 173 Cr.P.C. and sent the same to the Court.
21. PW8 Constable Prem Kumar Draftsman in CIA Staff, Karnal prepared the scaled site plan Ex.PK on the pointing of Purshotam Singh son of Amar Singh and Amar Singh son of Sohan Singh, residents of House No. 120, Station Area, Nilokheri on 27.1.2002.
22. PW9 ASI Jai Singh deposed that on 3.1.2002, on receipt of rukka Ex.PC, he recorded the formal FIR Ex.PC/1.
23. PW10 Constable Krishan Dutt deposed regarding taking the special report of the case under Section 302 IPC.
24. PW11 HC Narender Jeet Singh is a formal witness regarding handing over the Special Report to the Illaqa Magistrate on 4.1.2002 at about 2.05 am.
25. PW12 Kuldeep Taneja, Rickshaw Driver, resident of Delhi deposed that the deceased Manpreet Kaur was his real sister-in-law. She was younger than his wife. She was married with accused Surjit Singh about 8 years back. On 3.1.2002 the accused had rung up his other sister- in-law Meenu at Delhi informing her that Manpreet Kaur had caught fire and that she should come to Nilokheri. Meena Devi has been residing in Delhi and her house is situated near his house in the same locality. After receiving the telephone Meena Devi came to his house at about 12.00 noon or 1.00 pm and informed him about the telephonic message of the accused. Thereafter he and Meena Devi came to the house of accused at Nilokheri. They found that Manpreet Kaur was 9 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -10- Neutral Citation No. : 2023:PHHC:070198-DB unconscious and was unable to speak. She was still at the house. In the meantime, the police had also reached there. After arrival of police, he and Meena Devi took Manpreet Kaur to CHC Nilokheri for treatment and got her admitted there. The Medical Officer advised that they should take Manpreet Kaur to Safdarjung Hospital. Thereafter he and Meena Devi took Manpreet Kaur to Safdarjung Hospital, New Delhi and got her admitted there on 4.1.2002. Manpreet Kaur remained admitted there upto 28.1.2002 when she died on account of burn injuries. Except fore-arms of Manpreet Kaur, her entire body had burn injuries. He, Meena Devi and other relatives tried their best to save Manpreet Kaur. After 2-3 days of the occurrence, Manpreet Kaur told them that she had set herself on fire by pouring some oil. Manpreet Kaur was a lady with a hot temperament. The police did not record his statement in connection with this case.
26. On the request of the Ld. PP he was declared hostile.
27. During cross examination by the PP, he stated that bath room and latrine are inside the house of accused. The accused is living hand to mouth. He admitted that when he and Meena Devi had reached the house of accused, Manpreet Kaur was lying on a wooden platform (takhat) inside the house. She was wrapped with a blanket. He denied the suggestion that on seeing him and Meena Devi, Manpreet Kaur started weeping. He was confronted with the statement (Ex.PL), where it was so recorded. He also admitted that no door is fitted to the latrine in the house of accused and the same has been covered with a piece of cloth to screen it. He denied that he had stated before the police that Manpreet Kaur had told him and Meena Devi that on 1.1.2002 at about 8.30 am 10 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -11- Neutral Citation No. : 2023:PHHC:070198-DB when she was easing herself in latrine of the house which has no door, her husband poured diesel on her and set her on fire with a matchstick and she had gone out of the house and raised alarm. Thereupon, accused took her inside the room and wrapped her with a blanket and extinguished the fire. He was confronted with the statement (Ex.PL), where these facts have been recorded. He also denied that Manpreet Kaur had told him that the accused had threatened her and told that she should not disclose about the occurrence to anybody and should instead tell that she had caught fire because of electric current. He was confronted with the statement (Ex.PL), where these facts have been recorded.
28. PW13 Meena Devi stated that Manpreet Kaur was her younger sister. She was married with accused Surjit Singh about 8 years back. She used to reside at Nilokheri with accused. On 1.1.2002 the accused had rung up at her house in Delhi but on that day she was not available and his telephone was attended by her daughter Sonu aged about 15 years. She returned to her house in the night on 2.1.2002 and then her daughter told her that the accused had informed her that Manpreet Kaur had caught fire and that accused had asked her to come to Nilokheri. On the night of 2.1.2002 itself, she had a talk with her brother-in-law (behnoi) Kuldeep Singh who was residing near her house and they planned that they should go to Nilokheri in the morning of 3.1.2002.
29. On 3.1.2002, she, her sister Uma Devi wife of Kuldeep and Kuldeep started for Nilokheri in a car at about 10 or 10.30 am. However, she did not receive any telephonic call from the accused till that time.
11 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -12- Neutral Citation No. : 2023:PHHC:070198-DB They had reached the house of accused at Nilokheri at 8.00 pm as their car had developed some defect on the way. They saw that Manpreet Kaur was lying on the wooden platform (takhat) in the house and she had wrapped herself with a jaipuri quilt and not with a blanket. She did not tell them anything because she was unconscious at that time. She was having burn injuries all over her body. Thereafter, they took Manpreet Kaur to CHC Nilokheri. However, the Medical Officer did not admit her and told them to take her to Delhi. Manpreet Kaur remained at CHC Nilokheri hardly for 15 minutes. Thereafter, they took Manpreet Kaur to Safdarjung Hospital, New Delhi on 4.1.2002 and got her admitted there. Manpreet Kaur died at Safdarjung Hospital, New Delhi on 28.1.2002.
30. In cross examination by learned PP, she denied that she had made any statement (Ex.PM) to the police. She had not stated before the police that on seeing her and brother-in-law Kuldeep Singh, Manpreet Kaur had started weeping. She was confronted with statement (Ex.PM), where these facts have been recorded. She also denied that Manpreet Kaur had informed them that on 1.1.2002 at about 8.30 pm, when she was easing herself in the latrine at her house which has no door the accused poured diesel on her and set her on fire with a matchstick to cause her death and that thereupon she came out of the latrine, raised alarm and the accused took her inside the room, wrapped her in a blanket and extinguished the fire. She was confronted with the statement (Ex.PM), where these facts have been recorded. She also denied that Manpreet Kaur had told them that accused had also threatened her and asked her that instead of the actual facts she should tell that she had 12 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -13- Neutral Citation No. : 2023:PHHC:070198-DB caught fire because of electric current. She was confronted with the statement where these facts have been recorded.
31. PW14 SI/SHO Jagan Nath stated that on 3.1.2002 he was posted as ASI and Incharge of Police Post Nilokheri, Police Station Butana. On that day a rukka (Ex.PA/1) was received at Police Station Nilokheri from CHC Nilokheri regarding admission of Manpreet Kaur as a burn case. Thereafter, he accompanied by other police officials went to CHC Nilokheri at about 9.30 pm. He then moved an application (Ex.PB) before the Medical Officer to ascertain whether Manpreet Kaur was fit to make statement, on which the Medical Officer gave her opinion (Ex.PB/1) to the effect that the patient is fit to make a statement. The Medical Officer at that time was Dr. Ravinder Kaur. Thereafter, he recorded the statement (Ex.PC) of Manpreet Kaur. After recording her statement the contents thereof were read over to Manpreet Kaur. She affixed her right thumb impression after admitting the contents of Ex.PC to be correct. Dr. Ravinder Kaur remained present throughout when he recorded the statement of Manpreet Kaur and she had also attested the statement of Manpreet Kaur at Ex.PC/1. During the time he recorded the statement of Manpreet Kaur, she remained fully conscious and mentally alert. He then made his endorsement (Ex.PC/3) and sent the statement of Manpreet Kaur to Police Station Butana for registration of case and formal FIR (Ex.PC/2) was recorded.
32. The investigation of the case was then started by him. Meena, sister and Kuldeep Singh, Brother-in-law (Behnoi) of Manpreet Kaur were present at CHC Nilokheri and he recorded their statements under Section 161 Cr.P.C. The statements of Meena and Kuldeep Singh 13 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -14- Neutral Citation No. : 2023:PHHC:070198-DB were correctly recorded by him as stated before him without any addition or omission from his side. Ex.PM and Ex.PL are the correct photocopies of their statements.
33. On 4.1.2002, he visited the place of occurrence which was the house of accused and inspected the place of occurrence. From underneath the double bed he lifted a pint containing diesel and the burnt clothes of the deceased. The clothes were half burnt lady suit i.e. salwar and jumper, half burnt brasier. These clothes were sealed into a parcel with seal of JN. The pint bottle was separately sealed into a parcel. The sealed parcels were taken into possession vide recovery memo Ex.PN which were attested by PWs Purshotam and Amar Singh. He identified the half burnt lady suit (Ex.P1) and brasier (Ex.P2) as being the same half burnt clothes which he had lifted from the underneath of the double bed from the place of occurrence and sealed into a parcel. He also identified pint bottle (half) (Ex. P3) as being the same pint bottle containing diesel which he had lifted from the spot. He further deposed that on 5.1.2002 he was present at Grain Market, Nilokheri when Piara Singh, brother of accused, produced the accused before him and he then arrested the accused in this case.
34. On 31.1.2002 he went to Safdarjung Hospital, Delhi to know about the condition of Manpreet Kaur. In the Police Post of the hospital, ASI Shobhan Chand met him and on his enquiry he told him that Manpreeet Kaur had expired on 28.1.2002 and that he had conducted the inquest report of Manrpeet Kaur on 29.1.2002 and that her post mortem examination had already been conducted on 29.1.2002. On return to Police Station Butana he prepared a special report (Ex.PP) converting the 14 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -15- Neutral Citation No. : 2023:PHHC:070198-DB offence to under Section 302 IPC for sending to the Illaqa Magistrate. 35.
On 11.3.2002 he again went to Safdarjung Hospital, Delhi and met ASI Shobhan Chand and took from him the inquest report and the copy of post mortem report and attached with the file of this case.
36. After completion of the necessary investigation the final report under Section 173 Cr.P.C. was submitted by SI/SHO Baljinder Singh whose signatures he identified.
37. In cross examination by learned counsel for accused, he stated that when he reached CHC Nilokheri, the Medical Officer, Meena Devi and Kuldeep Singh were present there. Apart from them, none else met him at CHC Nilokheri. When he reached CHC Nilokheri, he saw that Manpreet Kaur had burn injuries but otherwise she was conscious and speaking. He did not feel any necessity at that time that dying declaration of Manpreet Kaur should be recorded by a Magistrate. He denied the suggestion that Meena and Kuldeep Singh did not meet him at CHC Nilokheri and they did not make any statement before him. He also denied that Manpreet Kaur was lying unconscious at CHC Nilokheri and did not make any statement before him.
38. PW15 ASI Shobhan Singh stated that in January 2002, he was posted as ASI of Police at Police Post Safderjung Hospital, New Delhi. In the morning of 4.1.2002 he received an intimation from Police Station Sarojini Nagar to the effect that a lady Manpreet has been admitted with burn injuries at Safdarjung Hospital, New Delhi. On receipt of this information he went there where he met the Medical Officer who was on duty. He then moved an application (Ex.PQ) before the Medical Officer to ascertain whether Manpreet Kaur was fit to make 15 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -16- Neutral Citation No. : 2023:PHHC:070198-DB a statement. The Medical Officer gave his opinion (Ex.PQ/1) to the effect that Manpreet Kaur was fit to make a statement. Thereafter, he recorded the statement of Manrpeet Kaur. He proved the statement (Ex.PQ/2). After recording her statement, its contents were read over to her and she had thumb marked the same after admitting its contents to be correct. During the period he recorded the statement of Manpreet Kaur she remained fully conscious and was mentally alert. At the instance of Manpreet Kaur he had made this recital on her behalf also on point X to X.
39. As per FSL report, Diesel (HSD) residues were detected in parcel Ex. 1 which contained the partially burnt clothes (chunni, lady's jumper, salwar and bra). Half glass bottle used as Diya (Ex. 2) containing brown coloured liquid was identified as Diesel (HSD) fuel.
40. Mr. Arun Kumar Bakshi, Ld. Counsel for the appellant has made the following submissions:
(i) The deceased died about 28 days after the burn injuries. The cause of death of the deceased is septicemia and not the burn injuries.
Septicemia is curable. The deceased died as no proper care was taken to get her treated from the specialised Burns Department though such a department was available.
(ii)As the deceased died about 28 days after recording of her statements, her statements cannot be treated as a dying declaration.
(iii)The statement was recorded before the police officers and not before a Magistrate. Its probative value is doubtful.
(iv)The sister and brother-in-law have not supported the prosecution case and have been declared hostile.
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(v) There was no intention to kill. The accused immediately informed the sister and brother-in-law that the patient had sustained burn injuries. Even as per the statement of the deceased the accused put out the fire and wrapped the deceased in a blanket. Hence offence under Section 302 IPC is not made out.
41. Mr. Anmol Malik, Ld. DAG Haryana on the other hand contended that the prosecution has been able to prove its case beyond reasonable doubt. The victim was in a sound state of mind when she recorded her statement. Her statement has been recorded separately at CHC Hospital Nilokheri where she was initially taken and then at Safdarjung Hosptial, New Delhi. In both these statements she consistently stated that the appellant had poured diesel on her , then thrown a lighted match stick and set her on fire with an intention to cause her death. He further argued that the intention of the accused is manifest from the fact that he did not take her to any doctor. The victim was left untreated for more than two days resulting in the development of septicemia. It was only on 3.2.2002 when the sister and brother-in-law of the victim arrived that they took her to the hospital for treatment. He argued that septicemia was the direct result of the burn injuries caused to the victim-deceased by the appellant. Hence the accused has been rightly convicted for the offence under Section 302 IPC.
42. He further contended that the sister and brother -in-law of the deceased may have turned hostile due to some reasons but the dying declaration being clear and unequivocal about the role of the accused is sufficient to convict the accused. Moreover as per the FSL report residues of diesel were found on the half burnt clothes of the deceased 17 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -18- Neutral Citation No. : 2023:PHHC:070198-DB taken into possession from the spot. The bottle was found to contain HSD Diesel. This is clearly consistent with the version of the deceased. 43 Having heard Ld. Counsel we find that there is no merit in the contentions of Mr. Bakshi.
44. The first argument of Mr. Bakshi that the statements of the deceased cannot be treated as a dying declaration as she did not die due to the burn injuries but due to septicemia that too after about 28 days of the recording of the statement does not merit acceptance. It undoubtedly is true that the patient suffered the burn injuries on 1.2.2002 and died on 28.2.2002 due to septicemia. But this fact does not take the statements out of the ambit of dying declaration.
45. A similar situation was considered by Hon'ble Supreme Court in the case of State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai (SC): 2022 AIR Supreme Court 5393.
46. In that case the version of the prosecution was that the accused entered the house of the victim - deceased on the afternoon of 7th November 2004. He pushed her to the ground and committed rape upon her. When she called out for help, he allegedly poured kerosene on her and set her on fire with a matchstick. On hearing her cries for help, her relatives and other residents of the village had come to her room. They extinguished the fire and took her to Sadar Hospital,Deoghar, where she was admitted and underwent treatment for the injuries sustained by her. The Station In-charge at PS reached the Hospital and recorded the victim's statement the same day (i.e., 7th November 2004). In her statement, she narrated the incident as described above. The victim died on 14th December 2004. The doctor who conducted the post mortem 18 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -19- Neutral Citation No. : 2023:PHHC:070198-DB opined that the victim's death was caused by septicemia, which was a result of the deep burn injuries sustained by the victim.
47. It was argued on behalf of the accused that the victim died around a month after the occurrence of the incident complained of. Hence the statement made by the deceased to the IO was not a dying declaration.
48. The Court negatived this contention in view of the the post- mortem report which established that the victim died as a result of septicemia caused by her burn injuries. It was held that the statement of the victim was indeed a statement relevant as to the cause of her death and in regard to the circumstances which eventually resulted in her death. The Court observed as under:
"39. In the present case, the statement satisfies the conditions laid down in sub-clause (1) of Section 32 as it relates to both, the cause of death as well as to the circumstances of the transaction which resulted in death. This is because the statement clearly described that the respondent poured kerosene on her and set her on fire. The post-mortem report concludes that the cause of death is septicemia caused by the burn injuries sustained by the deceased. The statement of the deceased indicates that she sustained the burn injuries as a result of the respondent having poured kerosene on her and setting her on fire.
40. In addition, the statement of the deceased discloses that the respondent raped her before setting her on fire - this is a description of the circumstances of the transaction which resulted in her death. The statement of the deceased, therefore, satisfies the conditions in Section 32(1) and is itself a relevant fact. It shall be considered to be a dying declaration for the purpose of adjudicating this appeal."
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49. In another case Maniben v. State of Gujarat, (2007) 10 SCC 362 also the Supreme Court held that a dying declaration does not cease to be so only because the death takes place some days of the incident. The relevant observations are:
"18. A dying declaration need not cease to be one only because death took place 25 days after the incident. All attempts would be made to save the precious life of a 25 year old young woman. The doctors must have tried their best. Dying declaration which is recorded in expectation of death, need not be discarded only because death took place after a few days. What is necessary for the said purpose inter alia is that the statement had been made by a person who cannot be found or who is dead and thus incapable of giving evidence. The statements of the deceased must be of relevant facts vide Najjam Faraghi v. State of W.B., B. Shashikala v. State of A.P., Uka Ram v. State of Rajasthan, Paniben v. State of Gujarat and Mohan Lal v. State of Haryana."
50. Thus the mere fact that the deceased died some days after the recording of her statement and being set on fire does not detract from its character as dying declaration.
51. Having held that the statements are to be treated as a dying declaration we next proceed to assess its admissibility and acceptance.
52. The principles regarding the admissibility of dying declarations are well settled.
53. On this aspect the Hon'ble Supreme Court in Purshottam Chopra v. State (NCT of Delhi), (2020) 11 SCC 489 observed as under:
"18. The principles relating to admission and acceptability of the statement made by a victim representing the cause of death, usually referred to as a 20 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -21- Neutral Citation No. : 2023:PHHC:070198-DB dying declaration, are well settled and a few doubts as regards pre-requisites for acceptability of a dying declaration were also put at rest by the Constitution Bench of this Court in Laxman v. State of Maharashtra. 18.1. In the said case of Laxman, conviction of the appellant was based on dying declaration of the deceased which was recorded by the Judicial Magistrate. The Session Judge and the High Court found such dying declaration to be truthful, voluntary and trustworthy; and recorded conviction on that basis. In appeal to this Court, it was urged with reference to the decision in Paparambaka Rosamma v. State of A.P. that the dying declaration could not have been accepted by the Court to form the sole basis of conviction since certification of the doctor was not to the effect that the patient was in a fit state of mind to make the statement. On the other hand, it was contended on behalf of the State, with reference to the decision in Koli Chunilal Savji v. State of Gujarat, that the material on record indicated that the deceased was fully conscious and was capable of making a statement; and his dying declaration cannot be ignored merely because the doctor had not made the endorsement about his fit state of mind to make the statement. In view of these somewhat discordant notes, the matter came to be referred to the larger Bench.
18.2. The Constitution Bench in Laxman summed up the principles applicable as regards the acceptability of dying declaration in the following: (Laxman case, SCC pp. 713-14, para 3) "3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every 21 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -22- Neutral Citation No. : 2023:PHHC:070198-DB motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is 22 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -23- Neutral Citation No. : 2023:PHHC:070198-DB reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
54. What is essential to be ascertained is that the statement is voluntary and not a result of either tutoring or prompting or a product of imagination. It also needs to be ascertained that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant.
55. In this case the statement of the deceased was recorded twice. The first statement of the deceased was recorded at CHC Nilokheri on 3.1.2002. PW1 Dr. Ravinder Kaur Medical Officer CHC Nilokheri 23 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -24- Neutral Citation No. : 2023:PHHC:070198-DB has testified that the deceased was brought there by her sister Meena Devi and brother at 9.00 pm on 3.1.2002. At that time the patient was conscious and well oriented. After taking her opinion about the fitness of the patient, the same day ASI Jagan Nath, Incharge, Police Post, Nilokheri recorded the statement of patient Ex.PC in her presence at CHC Nilokheri. She has asserted that during the period of recording statement the patient remained mentally alert, conscious and fit to make a statement. She (PW 1) had also attested the statement. PW14 SI/SHO Jagan Nath has deposed that on 3.1.2002 on receipt of rukka at Police Station Nilokheri from CHC Nilokheri regarding admission of Manpreet Kaur as a burn case he went to CHC Nilokheri at about 9.30 pm. He moved an application before the Medical Officer to ascertain regarding fitness to make statement and on receiving the opinion that the patient is fit to make a statement he recorded the statement (Ex.PC) of Manpreet Kaur. After recording her statement the contents thereof were read over to Manpreet Kaur. She affixed her right thumb impression after admitting the contents of Ex.PC to be correct. Dr. Ravinder Kaur remained present throughout when he recorded the statement of Manpreet Kaur and she had also attested the statement of Manpreet Kaur at Ex.PC/1. During the time he recorded the statement of Manpreet Kaur, she remained fully conscious and mentally alert. He then made his endorsement (Ex.PC/3) and sent the statement of Manpreet Kaur to Police Station Butana for registration of case and formal FIR (Ex.PC/2) was recorded.
56. The second statement was recorded on 4.1.2002 at Safdarjung Hospital, New Delhi. PW15 ASI Shobhan Singh has testified that on receipt of information from Police Station Sarojini Nagar 24 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -25- Neutral Citation No. : 2023:PHHC:070198-DB regarding admission of a patient with burn injuries in the morning of 4.1.2002 he went there. After receiving the opinion of Medical Officer regarding fitness of the patient to make a statement he recorded the statement of Manrpeet Kaur. After recording her statement, its contents were read over to her and she had thumb marked the same after admitting its contents to be correct. During the period he recorded the statement of Manpreet Kaur she remained fully conscious and was mentally alert.
57. From the above it is clear that both the statements were made by the deceased when she was conscious and alert. Both were read out to her and were thumb marked by her in token of their correctness. The first statement was also attested by the doctor. Both the statements narrate the same details has to how she was set on fire by the accused with an intention to kill her who also threatened that she should not disclose the true facts but state that the fire had been caused due to electric current.
58. The cause of the burns finds corroboration from the report of the FSL. As per FSL report, Diesel (HSD) residues were detected in parcel (Ex. 1) which contained the partially burnt clothes (chunni, lady's jumper, salwar and bra). Half glass bottle used as Diya (Ex. 2) containing brown coloured liquid was identified as Diesel (HSD) fuel. These were the articles that were recovered by PW 14 SI/SHO Jagan Nath from underneath the double bed in the house of the accused when he had gone to the place of occurrence.
59. The next argument of Mr. Bakshi was that as the accused died due to septicemia and not due to the burn injuries the offence under Section 302 IPC is not made out. Mr. Bakshi drew attention to the cross 25 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -26- Neutral Citation No. : 2023:PHHC:070198-DB examination of PW2 Dr. Arvind Thergaonkar, Chief Medical Officer, Department of Forensic Medicines, Safdarjung Hospital, New Delhi that septicemia is curable, that in Safdarjung Hospital there was a specialized burn unit along with intensive care unit of burn and appropriate treatment is given to the needy patient. He argued that Septicemia being curable and there being a specialized burn unit in the hospital where the deceased remained admitted, if the attendants of the deceased did not avail of the facility of the specialized unit the death cannot be attributed to the burn injuries but is due to the lack of proper treatment.
60. This argument cannot be accepted.
61. PW2 Dr. Arvind Thergaonkar who conducted the post mortem on 29.1.2002 had specifically opined that in his opinion, the cause of death was septicemia following about 60 percent ante- mortem infected flame burns. In cross examination he stated that infection in a case of burn could cause septicemia if the patient is not treated properly. Voluntarily stated that in a case of burn the possibility of septicemia is very high because of molecular death of tissue due to burns. PW3 Dr. Manish Zade, Senior Resident in Burns and Plastic Surgery Department, Safdarjung Hospital, New Delhi also stated that septicemia develops due to wound infection. He stated that infection is possible even if the patient is treated properly. He testified that the patient suffered "predominantly deep dermal burns over face, chest, abdomen both upper and lower limbs, amounting to approximately 60 percent total body surface area thermal burns. The injuries were 60 percent thermal burns and were found to be dangerous in nature."
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62. Clearly septicemia was the result of burn injuries suffered by the deceased at the hands of the appellant. The Hon'ble Supreme Court negatived similar contention as that advanced by Mr. Bakshi in State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai (supra) observing as under:
"49. The dying declaration makes it abundantly clear that the respondent raped the deceased, poured kerosene on her, and set her on fire. The cause of death was septicemia, which occurred as a result of the burn injuries. Hence, the victim's death was a direct result of the injuries inflicted upon her by the respondent. There is nothing on record which gives rise to reasonable doubt as to the respondent's guilt."
63. A Division Bench of this Court had also negatived similar argument in Jamna Kaur v. State of Punjab, (1992) 3 RCR (Cri) 341. The relevant observations are :
"13. The learned counsel for the appellants argued that though Kuldip Kaur suffered burn injuries on 27th March, 1988, but she died on 12th May, 1988, and thus the burn injuries cannot be said to be the cause of her death. In support of his contention, the learned counsel cited Kartara v. The State of Haryana, 1980 Punjab Law Reporter 8, which, in view of the peculiar facts of this case, is not applicable. In Kartara's case (supra), the deceased was hit with a lathi on the head. The doctor had found contusion mark over the right side of the scalp and forehead. The deceased remained under treatment for a period exceeding two months and, thus, the Court taking an over all view of the fact that the death occurred long after the injury caused, converted the conviction from 27 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -28- Neutral Citation No. : 2023:PHHC:070198-DB one under Section 304 of the Indian Penal Code to Section 325, Indian Penal Code here, in the present case. Dr. Nagin Dhaliwal (PW1), who conducted the post- mortem examination on the dead body of Kuldip Kaur had found burn injuries to the extent of 50 to 60 per cent involving vital area of the body. Death in this case was due to hypovolaemia and neurogenic shook. Hypovolemia as per Stedman's Medical Dictionary mean as deficiency in the amount of blood in the body, which was quite obvious in view of the extensive burns suffered by Kuldip Kaur.
14. Merely for the reason that the death of Kuldip Kaur occurred after a time gap is no ground to hold that death was not on account of injuries suffered by the deceased. Death in the instant case is directly the result of and connected with the burn injuries. In the case reported as Davasia Yobannan v. State, AIR 1958 Kerala 207 the deceased died on account of injury caused to her spinal chord, but the death occurred after a gap of about seven months in the hospital. The Court held that the death was caused by the injury and the accused was guilty nothing short of murder."
64. The mere fact that PW 12- Kuldeep Taneja, brother-in-law of the deceased, and the PW-13 Meena Devi, the sister of the deceased had turned hostile also would not help the accused in view of the dying declaration being clear, consistent and credible and having been made by the deceased when she was in a sound state of mind to make the statement.
65. The fact that the statement was not recorded before the Magistrate is also not material in view of what has been observed above.
66. The other argument of Mr. Bakshi that there was no intention 28 of 29 ::: Downloaded on - 12-06-2023 09:15:59 ::: Neutral Citation No:=2023:PHHC:070198-DB CRA-D-515-DB-2003 -29- Neutral Citation No. : 2023:PHHC:070198-DB to cause the death and the offence, if at all, was under Section 304 Part I or Section 304 Part II cannot be accepted. The accused is presumed to know the consequences of his actions, of having sprinkled diesel on the deceased and and setting her on fire with a match stick. In our view, the accused was correctly charge-sheeted and held guilty under Section 302 IPC and we find no reason to interfere with the conviction and sentence awarded by the trial court.
67. Thus there is no merit in the appeal and the same is dismissed.
(LALIT BATRA) (HARINDER SINGH SIDHU)
JUDGE JUDGE
April 29, 2023
gian
Whether Speaking / Yes
Reasoned
Whether Reportable Yes / No
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